Ruttenberg v. Jones

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-1037

DAVID M. RUTTENBERG; JUDITH G. RUTTENBERG; TRIPLE D
ENTERPRISES, INC.,

Plaintiffs - Appellants,

v.

FRANK JONES, Mayor of Manassas Park, Virginia, in his official
and individual capacities; JOHN EVANS, Chief of Police of
Manassas Park, Virginia, in his official and individual
capacities; DETECTIVE L, Manassas Park Police Detective, in
his official and individual capacities; CITY OF MANASSAS PARK,
VIRGINIA; DETECTIVE W, Prince William County Police Detective,
in his official and individual capacities; THOMAS L. KIFER, in
his official and individual capacities,

Defendants - Appellees.

--------------------------------------

AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, INCORPORATED,

Amicus Supporting Appellants.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:06-cv-00639-TSE-BR)

Argued: March 19, 2008 Decided: June 17, 2008

Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge, and Irene
M. KEELEY, United States District Judge for the Northern District
of West Virginia, sitting by designation.
Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.

ARGUED: Judith Lynne Wheat, WHEAT & WU, Washington, D.C., for
Appellants. John David Wilburn, MCGUIREWOODS, L.L.P., McLean,
Virginia, for Appellees. ON BRIEF: Neil H. Ruttenberg, Beltsville,
Maryland, for Appellants. Anand V. Ramana, MCGUIREWOODS, L.L.P.,
McLean, Virginia, for Appellees Frank Jones, John Evans, Detective
L, City of Manassas Park, Virginia; M. Alice Rowan, PRINCE WILLIAM
COUNTY, Prince William, Virginia, for Appellee Detective W.
Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA
FOUNDATION, INC., Richmond, Virginia, for Amicus Supporting
Appellants.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

David Ruttenberg, Judith Ruttenberg, and Triple D Enterprises,

Inc. (collectively “Appellants”) appeal the dismissal of their

complaint, which alleged that numerous officials of the City of

Manassas Park and Prince William County and the City of Manassas

Park itself (collectively “Appellees”) violated their rights under

the First, Fourth, and Fourteenth Amendments during an alleged

multi-year course of conduct designed to harm Appellants and

destroy their business by, among other things, manufacturing

evidence of illegal drug transactions, conducting an illegal search

of the business, and committing perjury during state administrative

proceedings. The district court dismissed Appellants’ First and

Fourteenth Amendment claims for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6) and dismissed Appellants’

Fourth Amendment claim because it concluded that Appellees were

entitled to qualified immunity for their actions. We affirm the

dismissal of Appellants’ First and Fourteenth Amendment claims, but

reverse the district court’s dismissal of the Fourth Amendment

claim and remand for further proceedings consistent with this

decision.

I.

The district court granted Appellees’ motion to dismiss, so we

accept as true the well-pleaded allegations stated in the complaint

3
and view the complaint in the light most favorable to Appellants.

Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).

These facts can be summarized as follows:

David Ruttenberg and his mother Judith Ruttenberg, both

citizens of Maryland, own and operate Triple D Enterprises, Inc.

(“Triple D”), a Maryland corporation with its principal place of

business in Virginia. In 1992, Triple D opened the Rack ‘N’ Roll

Billiard Club (“RNR”) in Manassas Park Shopping Center, located in

the independent city of Manassas Park, Virginia. In 1993, RNR

applied for, and was granted, a Virginia Alcoholic Beverage Control

(“ABC”) license for beer. RNR also possessed a conditional-use

permit from the City of Manassas Park allowing the operation of the

business on the premises. Until 2004, RNR received no citations

for ABC violations although it was subject to ABC’s undercover

monitoring program. From 1993 to 2004, the business was generally

very successful and well-known in the community, so much so that

the Vice-Mayor of Manassas Park actually served as a disc jockey at

the club for four years.

In the fall of 2001, Detective L, a police officer with the

City of Manassas Park Police Department, began dating Nina Buell,

a friend of David Ruttenberg (hereinafter “Ruttenberg”). Detective

L “did not like David Ruttenberg’s friendship with Buell.” (J.A.

at 65.) Tina McKnight, a RNR waitress, informed Ruttenberg that

Buell had told her of a conversation with Detective L in which he

4
informed Buell that Ruttenberg was under investigation for cocaine

use and distribution. Ruttenberg called Detective L to discuss the

allegation, and Detective L responded by contacting McKnight and

berating her until she retracted her previous statement. Detective

L then told Ruttenberg that he would “take down” Ruttenberg and RNR

if he heard anything more about the issue. (J.A. at 66.)

In response, Ruttenberg called Detective L’s superior, Officer

Larry Berry, and informed him of the threat and Ruttenberg’s belief

that “[Detective L] seemed intent on destroying [him] and RNR” by

alleging that he was “under some kind of criminal investigation for

drug distribution.” (J.A. at 66.) Officer Berry then cancelled a

“ride-along” that Detective L had arranged for himself and Buell.

(J.A. at 67.)

Thereafter, in late 2001, Detective L initiated a plan to

retaliate against Ruttenberg. According to Appellants, the plan

began in December 2001, when Detective L initiated “bogus charges”

against Ruttenberg. (J.A. at 68.) Ruttenberg had previously

reported that an employee had stolen equipment from RNR, but when

he learned that the employee faced significant jail time due to

prior convictions, Ruttenberg, in an act of mercy, decided not to

pursue the complaint. Following that decision, Ruttenberg was

charged with filing a false police report; on his court date, the

charges were dismissed even though Ruttenberg saw Detective L in

the courtroom that day.

5
 After this incident, Ruttenberg and his father Neil

Ruttenberg, who is an attorney, met with John Evans, the Manassas

Park Police Chief, to discuss Detective L’s conduct. Chief Evans,

however, took no action against Detective L.

By the spring of 2003, Detective L had become a member of the

Narcotics Task Force, a joint effort among the Prince William

County, the City of Manassas, and the City of Manassas Park Police

Departments to curb drug use and distribution. Around this time,

a female friend of Ruttenberg was arrested for driving while

intoxicated. Detective L met with her and offered to dismiss the

charges if she would help facilitate drug transactions on the

premises of the RNR. Subsequently, she informed Ruttenberg of the

Narcotics Task Force’s offer, and she later told Ruttenberg that

the Task Force was planning a raid at RNR to apprehend the

perpetrators of drug transactions conducted at RNR and to search

RNR. Upon hearing this information, Ruttenberg immediately

contacted Chief Evans to complain about Detective L’s actions. No

raid occurred at that time, but the charges against Ruttenberg’s

female friend were reinstated.

Thereafter, in late 2003 or early 2004, Detective L became the

case agent for a Narcotics Task Force investigation into

Ruttenberg’s alleged cocaine use and distribution at RNR. At that

time, Detective L came into contact with Thomas L. Kifer, a

convicted felon who was in jail for passing bad checks at RNR.

6
Prior to his time in prison, Kifer had worked for RNR performing

various odd jobs, including door security. Detective L asked Kifer

to become a paid police informant and to aid in the investigation

of Ruttenberg. Kifer, who blamed Ruttenberg for his jail stint,

agreed and later told a subsequent employer that he was part of a

plot to destroy Ruttenberg.

In January 2004, after his release from jail, Kifer approached

Ruttenberg about providing door security at RNR. Although

initially hesitant to rehire Kifer, Ruttenberg eventually relented.

Ruttenberg clearly communicated to Kifer and his other employees

that RNR’s policy was that drug dealers were not to be tolerated on

the premises and that known drug dealers were to be removed from

the premises immediately.

In February 2004, Detective L assigned Detective W, a

detective with the Prince William County Police Department and a

member of the Narcotics Task Force, to help investigate Ruttenberg

and RNR. Detective L told Detective W that RNR was an “open air

drug market,” (J.A. at 73), although there was no evidence

supporting such an assertion.

During this time period, Ruttenberg was paying Jeffrey Price,

a homeless individual, to perform custodial and cleaning services

at RNR after hours. Ruttenberg became aware that Price had an

arrest record and became suspicious that Price was dealing drugs at

7
RNR. He confronted Price, who stated he was working with the

police but was not engaged in illegal activity at RNR.

Nonetheless, between February 25, 2004 and April 19, 2004,

Detective W purchased drugs on eight occasions at RNR, and on seven

of those occasions he bought the drugs from Price. Detective W was

the only purchaser in any of the illegal drug transactions at RNR,

and Kifer was aware of these transactions but, because of his

status as a police informant working with Detective L and Detective

W, he continually permitted Price and other drug dealers with whom

he was acquainted onto the premises at RNR. Kifer apparently

received payments from several drug dealers in exchange for

allowing them to enter the premises. Neither Ruttenberg himself,

nor any employees of RNR other than Kifer, were involved in these

drug transactions.

Despite these transactions involving Detective W, Detective L

was unable to procure a search warrant for RNR. Undeterred,

Detective L and the Narcotics Task Force contacted Special Agent

Loftis of the Virginia ABC authorities to request the participation

of ABC authorities in conducting an administrative search at the

RNR. Because it held an ABC license, RNR was subject to

administrative searches by ABC Special Agents. See 3 Va. Admin.

Code § 5-50-70(B) (2007). Special Agent Loftis agreed and, on June

2, 2004, the Narcotics Task Force raided RNR with over fifty police

and law enforcement personnel. Only six or seven of the law

8
enforcement personnel were ABC agents and many of the participants

were “heavily armed SWAT team members, in full tactical gear.”

(J.A. at 76.) During the raid, which lasted between one and two

hours, the heavily-armed law enforcement personnel detained and

searched RNR patrons and employees. Additionally, the officers

searched Ruttenberg’s private office, in which they found two

bottles of vodka.

The team of officers discovered only one ABC violation as part

of the raid: Ruttenberg kept two bottles of un-chilled Mexican

beer that should have been labeled as “samples,” but were not.

(J.A. at 78.) According to the complaint, only Jeffrey Price, one

of the participants in the drug transactions orchestrated by

Detective W, was arrested.

Following the raid, Ruttenberg, accompanied by a friend who

was a police officer on sabbatical from the Prince William County

Police Department, went to the Northern Virginia Electrical

Cooperative (“NOVEC”) to pay RNR’s electric bill. Upon arriving in

the NOVEC parking lot, two Prince William County police cruisers

blocked Ruttenberg’s car. The officers, who were members of the

Narcotics Task Force, exited the police vehicles with their weapons

drawn and pointed at Ruttenberg and his friend. Once Ruttenberg’s

friend identified himself, the officers immediately withdrew.

In the weeks following the raid, Frank Jones, the Mayor of

Manassas Park, and Chief Evans began patrolling the area around RNR

to obtain information about alleged illegal activity occurring at
9
RNR. Appellants claim that Ruttenberg and others observed Mayor

Jones outside RNR at odd hours of the night, including past

midnight on numerous occasions.

As a result of the raid, the ABC Board identified four

violations at RNR: (1) disorderly conduct (based on information

provided by Detective W that female patrons exposed their breasts

on three occasions in a four-month period); (2) serving as a

meeting place or rendezvous for users of narcotics/drunks/etc.; (3)

keeping or allowing to be kept unauthorized alcoholic beverages

(the samples of Mexican beer) on the premises; and (4) consumption

of alcoholic beverages by a person less than twenty-one years of

age. Based on these violations, in late 2005, the ABC Board held

an evidentiary hearing and revoked Triple D’s ABC license.

Appellants allege that Detective L and Kifer perjured themselves

during this hearing, and that the deprivation of the ABC license

arose from the “deliberate, conscience shocking campaign” of the

defendants. (J.A. at 82.) Prior to these citations, Triple D had

a perfectly clean record. And, to this date, Ruttenberg has not

been arrested or charged with any drug-related offenses.

In 2006, the Manassas Park City Council voted to deny Triple

D’s request to renew its conditional-use permit and ordered Triple

D to vacate the premises on which RNR was located. Both decisions

remain on appeal in the Virginia state court system.

Based upon these events, on June 1, 2006, Appellants filed an

eight count complaint in the United States District Court for the
10
Eastern District of Virginia against Mayor Jones, Chief Evans,

Detective L, Detective W, the City of Manassas Park, and Thomas

Kifer alleging (1) that all the defendants violated Ruttenberg’s

Due Process rights under the Fourteenth Amendment by depriving

Ruttenberg of his ABC license, conditional-use permit, and right to

conduct his business (Count I);1 (2) that Chief Evans, Detective L,

Detective W, Kifer, and the City of Manassas Park retaliated

against Ruttenberg for exercising his right to freedom of speech

under the First Amendment (Count II); (3) that Chief Evans,

Detective L, Detective W, Kifer, and the City of Manassas Park

engaged in an unreasonable search and seizure in violation of the

Fourth Amendment (Count III); (4) that Mayor Jones, Chief Evans,

Detective L, Detective W, and the City of Manassas Park selectively

prosecuted Ruttenberg in violation of the Fourteenth Amendment’s

Equal Protection Clause (Count IV); (5) that Mayor Jones, Chief

Evans, Detective L, Detective W, and Kifer entered a conspiracy to

violate Ruttenberg’s civil and constitutional rights (Count V); (6)

that Mayor Jones, Chief Evans, Detective L, Detective W, and Kifer

1
Appellees argue that we should affirm the dismissal of Count
I because the Rooker-Feldman doctrine deprives us of jurisdiction
to hear issues related to the ABC and the conditional-use permit
proceedings. But as Appellee Prince William County conceded before
the district court, the Rooker-Feldman doctrine is inapposite
because “the Rooker-Feldman doctrine applies only when the loser in
state court files suit in federal district court seeking redress
for an injury allegedly caused by the state court’s decision
itself.” (J.A. at 14 (quoting Davani v. Virginia Dep’t of Transp.,
434 F.3d 712, 713 (4th Cir. 2006)). Here, there is not yet a final
state court decision, and Appellants seek redress for injuries
allegedly caused by Appellees’ actions, not a state court decision.
11
tortuously interfered with Ruttenberg’s contracts (Count VI); (7)

that Mayor Jones, Chief Evans, Detective L, Detective W, and Kifer

committed common law civil conspiracy against Ruttenberg (Count

VII); and (8) that Mayor Jones, Chief Evans, Detective L, Detective

W, and Kifer engaged in a business conspiracy against Ruttenberg in

violation of Va. Code Ann. §§ 18.2-499, 18.2-500 (2004 & Supp.

2007) (Count VIII).

On July 7, 2006, the defendants, under Federal Rule of Civil

Procedure 12(b)(6), moved to dismiss Appellants’ complaint for

failure to state a claim. The district court, by published

opinion, Ruttenberg v. Jones, 464 F.Supp. 2d 536 (E.D. Va. 2006),

granted the motion to dismiss on December 13, 2006, concluding that

Counts I, II, IV, and V failed to state a claim upon which relief

could be granted and that the defendants were entitled to qualified

immunity as to Count III (the Fourth Amendment claim). The

district court then dismissed, without prejudice, the state-law

claims, Counts VI, VII, and VIII.

Appellants timely noted an appeal on January 12, 2007, and we

possess jurisdiction pursuant to 28 U.S.C.A. § 1291 (West 2006).

II.

On appeal, Appellants contend that the district court erred in

dismissing Counts I, II, IV, and V and in granting Appellees

qualified immunity on Count III. We address each of these

arguments in turn.
12
 A. Standard of Review

The district court dismissed the complaint for failure to

state a claim under Rule 12(b)(6). We review the district court’s

decision de novo. Bominflot, Inc. v. The M/V Henrich S, 465 F.3d

144, 145 (4th Cir. 2006). “[A] Rule 12(b)(6) motion should only be

granted if, after accepting all well-pleaded allegations in the

plaintiff’s complaint as true and drawing all reasonable factual

inferences from those facts in the plaintiff’s favor, it appears

certain that the plaintiff cannot prove any set of facts in support

of his claim entitling him to relief.” Edwards v. City of

Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Additionally, a

complaint must be dismissed if it does not allege “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007) (emphasis added).

As the Twombly Court explained, “a plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitlement to relief’ requires more

than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Id. at 1964-65.

Accordingly, in that case, the Court upheld the dismissal of a

complaint where the plaintiffs failed to “nudge[] their claims

across the line from conceivable to plausible.” Id. at 1974.

B. Fourteenth Amendment Substantive Due Process Claim

Appellants first argue on appeal that the Appellees violated

their substantive due process rights by depriving them of their

13
constitutionally protected rights in the continued ownership and

operation of RNR, its Virginia ABC license, and its conditional-use

permit.

The Fourteenth Amendment’s due process clause contains both a

procedural and substantive component. To state a claim for

violation of substantive due process, a claimant must allege: “(1)

that they had property or a property interest; (2) that the state

deprived them of this property or property interest; and (3) that

the state’s action falls so far beyond the outer limits of

legitimate governmental action that no process could cure the

deficiency.” Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 827

(4th Cir. 1995); see also Love v. Pepersack, 47 F.3d 120, 122 (4th

Cir. 1995) (“Substantive due process is a far narrower concept than

procedural; it is an absolute check on certain governmental actions

notwithstanding the fairness of the procedures used to implement

them.” (internal quotation marks omitted)). The protections of

substantive due process “‘run only to state action which is so

arbitrary and irrational, so unjustified by any circumstance or

governmental interest, as to be literally incapable of avoidance by

any pre-deprivation procedural protections or of adequate

rectification by any post-deprivation state remedies.’” Id.

(quoting Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir.

1991)). “Irrationality and arbitrariness imply a most stringent

14
standard against which state action is to be measured in assessing

a substantive due process claim.” Rucker, 946 F.2d at 281.

In the complaint, Appellants allege that they have property

interests in: (1) the ownership and operation of RNR; (2) RNR’s

Virginia ABC license; and (3) RNR’s conditional-use permit from

Manassas Park City. The complaint further alleges that the named

defendants deprived Appellants of these property interests through

a vindictive campaign culminating in the fabrication of evidence at

hearings regarding RNR’s ABC license and conditional-use permit.

The district court dismissed this claim, concluding that Appellants

had no property interest in the conditional-use permit, and that

they had adequate state remedies regarding the removal of the ABC

license, i.e., the Appellants could (and did) appeal that

deprivation under Va. Code Ann. § 4.1-227 (1999 & Supp. 2007).

Appellants admittedly have a property interest in both the ABC

license and the conditional-use permit.2 The alleged actions here,

however, do not fall “so far outside” the realm of normal

governmental behavior that there is no “adequate rectification by

2
The district court found that Ruttenberg did not have a
property interest in the conditional-use permit, but subsequent to
its ruling, the Circuit Court of Prince William County ruled that
Ruttenberg does have a property interest in that permit. Property
interests “are created and their dimensions are defined by existing
rules or understandings that stem from an independent source such
as state law-rules or understandings that secure certain benefits
and that support claims of entitlement to those benefits,” Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972), so we
are bound to conclude that Ruttenberg does have a protectable
property right in his conditional-use permit.
15
any post-deprivation state remedies.” Sylvia Dev. Corp., 48 F.3d

at 827 (internal quotation marks omitted). Indeed, pursuant to Va.

Code Ann. § 2.2-4027 (2005 & Supp. 2007), Appellants are entitled

to judicial review of the revocation of both the conditional-use

permit and his ABC license. The complaint makes no allegation

regarding the inadequacy of this judicial review, and Appellants

simply argue before us that the remedy is “nothing more than a

deferential appellate review by the state court.” (Appellant’s Br.

at 34.) Appellants identify no caselaw, however, holding that

judicial review that applies a deferential standard of review does

not constitute an adequate post-deprivation remedy.

Moreover, the existence of established state procedures

available to RNR before revocation of its ABC license and

conditional-use permit “belies the existence of a substantive due

process claim” as it relates to Appellants’ claimed right to

ownership and operation of RNR. Sylvia Dev. Corp., 48 F.3d at 829.

At the state administrative hearings, Appellants had the

opportunity to challenge the evidence against them--the same

challenges they present before us. In their substantive due

process claim, Appellants essentially ask us to reweigh the

credibility determinations made by the state administrative bodies.

We decline to do so, and therefore affirm the dismissal of the

substantive due process claim.

C. First Amendment Claim

16
 Appellants next contend that the district court erred in

dismissing their claim that the Appellees violated their First

Amendment rights by retaliating against Ruttenberg for exercising

his right to free speech.

“The First Amendment right to free speech includes not only

the affirmative right to speak, but also the right to be free from

retaliation by a public official for the exercise of that right.”

Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000).

Of course, “not every reaction made in response to an individual’s

exercise of his First Amendment right to free speech is actionable

retaliation.” Id. Thus, to prevail on a retaliation claim under

42 U.S.C.A. § 1983 (West 2003), Appellants’ allegations must

satisfy a three-prong test. “First, [Appellants] must demonstrate

that [their] speech was protected.” Id. at 686. “Second,

[Appellants] must demonstrate that the defendant’s alleged

retaliatory action adversely affected [their] constitutionally

protected speech.” Id. Finally, the Appellants “must demonstrate

that a causal relationship exists between its speech and the

defendant’s retaliatory action.” Id.

In their complaint, the Appellants allege that Ruttenberg

complained about Detective L to his supervisor, Officer Berry, and

that Officer Berry cancelled a ride-along that Detective L had

scheduled with his girlfriend. Appellants allege that Detective L

retaliated by conducting a multi-year vendetta against Ruttenberg,

17
culminating in the June 2, 2004 raid at RNR. The district court

dismissed this claim because Appellants “fail[ed] to allege any

adverse impact on their First Amendment rights.” (J.A. at 188.)

Although we disagree with the district court’s analysis of this

issue, we nonetheless affirm. See Catawba Indian Tribe of S.C. v.

City of Rock Hill, 501 F.3d 368, 372 n.4 (4th Cir. 2007)

(explaining that because we “review judgments, not opinions,” we

are “entitled to affirm the district court on any ground that would

support the judgment in favor of the party prevailing below”).

In reviewing the complaint, we agree with the Appellants that

it alleges facts sufficient to establish two of the elements

necessary to state a First Amendment retaliation claim. Clearly

Ruttenberg’s speech was on a matter of public concern and thus

protected. As to the second requirement, we disagree with the

district court’s conclusion that Appellants “fail[ed] to allege any

adverse impact on their First Amendment rights.” (J.A. at 188.)

The test is not whether Appellants’ First Amendment rights were

chilled, but whether a person of reasonable firmness in Appellants’

situation would have been chilled. “[W]e undertake an objective

inquiry into whether a similarly situated person of ordinary

firmness reasonably would be chilled by the government conduct in

light of the circumstances presented in the particular case.”

Blankenship v. Manchin, 471 F.3d 523, 530 (4th Cir. 2006) (internal

quotation marks omitted). In so doing, we must “focus on the

18
status of the speaker, the relationship between the speaker and the

retaliator, and the nature of the retaliatory acts.” Id. at 531

(internal quotation marks omitted). Here, given the allegations in

the complaint, a reasonable person in Appellants’ situation would

have been chilled by the alleged retaliatory conduct. As we

explained in Blankenship, a chill is likely when the state actor

has “‘engaged the punitive machinery of the government in order to

punish’” an individual for speaking out. Blankenship, 471 F.3d at

531 (quoting Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir.

2003)).

We conclude, however, that Appellants have failed to establish

a causal relationship between their speech and the retaliatory

action. “The causation requirement is rigorous; it is not enough

that the protected expression played a role or was a motivating

factor in the retaliation.” Huang v. Bd. of Governors of the Univ.

of N.C., 902 F.2d 1134, 1140 (4th Cir. 1990). Appellants must show

that “but for” the protected speech, the alleged retaliatory

conduct would not have occurred. Id. Even under a favorable

reading of the complaint, it is clear that Detective L’s vindictive

actions began prior to any complaints raised by Ruttenberg to the

detective’s superiors. Indeed, the complaint alleges that

Ruttenberg knew he was under investigation for cocaine use and

distribution before he lodged any complaints to the police. As

such, Appellants cannot meet the “rigorous” causation requirement

19
of showing that the alleged retaliatory conduct would not have

occurred “but for” his complaints about Detective L. We therefore

affirm the dismissal of the First Amendment claim.

D. Fourteenth Amendment Equal Protection Claim

The Appellants next argue that the district court erred in

concluding that they had failed to plead a “class of one” equal

protection claim. “The purpose of the equal protection clause of

the Fourteenth Amendment is to secure every person within the

State’s jurisdiction against intentional and arbitrary

discrimination, whether occasioned by express terms of a statute or

by its improper execution through duly constituted agents.” Vill.

of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (internal

quotation marks and alteration omitted). In recognition of this

guarantee, “the Supreme Court has recognized the validity of ‘class

of one’ Equal Protection claims, ‘where the plaintiff alleges that

she has been intentionally treated differently from others

similarly situated and that there is no rational basis for the

difference in treatment.’” Willis v. Town of Marshall, 426 F.3d

251, 263 (4th Cir. 2005) (quoting Olech, 528 U.S. at 564).

The complaint alleges that Mayor Jones, Chief Evans, Detective

L, and Detective W “selectively enforced the ABC laws and narcotics

laws” in violation of Appellants’ equal protection rights. (J.A.

at 86.) The district court dismissed this claim because the

“conclusory allegations” were “plainly insufficient” and “d[id] not

20
allege the existence of any similarly situated persons, nor . . .

that [Appellants] were treated differently from any such persons.”

(J.A. at 193.)

As the district court correctly stated, the complaint fails to

allege the existence of similarly situated individuals. In

addition, the complaint fails to allege that the disparate

treatment lacked a rational basis. See Giarratano v. Johnson, 521

F.3d 298 (4th Cir. 2008) (affirming the dismissal of a complaint

that failed to adequately allege the absence of a rational basis

supporting the plaintiff’s disparate treatment). Thus, it fails to

state a claim under Rule 12(b)(6), and we affirm the district

court’s dismissal of this count.

E. Section 1983 Conspiracy Claim

We now turn to Appellants’ claim that they adequately pleaded

a conspiracy claim under § 1983. Section 1983 includes protection

against conspiracies to violate civil rights. “To establish a

civil conspiracy under § 1983, Appellants must present evidence

that the Appellees acted jointly in concert and that some overt act

was done in furtherance of the conspiracy which resulted in

Appellants’ deprivation of a constitutional right.” Hinkle v. City

of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996). Appellants

alleged in their complaint that the Appellees conspired to violate

their substantive due process, equal protection, First Amendment,

and Fourth Amendment rights. The district court dismissed this

21
claim because (1) it dismissed the underlying claims and (2)

Appellants “fail[ed] to allege any facts demonstrating an agreement

amongst the alleged co-conspirators.” (J.A. at 194.)

Although we do not dismiss all of the underlying claims, we

believe the district court correctly dismissed this count as well.

Under Twombly, Appellants were required to allege “enough facts to

state a claim to relief that is plausible on its face.” Twombly,

127 S. Ct. at 1974. This requires a “plausible suggestion of

conspiracy,” Twombly, 127 S. Ct. at 1971, and Appellants needed to

plead facts that would “reasonably lead to the inference that

Appellees positively or tacitly came to a mutual understanding to

try to accomplish a common and unlawful plan,” Hinkle, 81 F.3d at

421. The complaint makes the bare, conclusory allegation that the

defendants conspired to violate his constitutional rights and that

the conspiracy culminated in the fabricated testimony. No common

purpose is alleged and nothing beyond conclusory allegations of

conspiracy are made. We therefore affirm the dismissal of the §

1983 conspiracy claim.

F. The Fourth Amendment Claim

Appellants next contend that the district court erred when it

dismissed Count III of their complaint on qualified immunity

grounds. Count III alleges that the defendants deprived plaintiffs

of their Fourth Amendment rights in violation of 42 U.S.C.A. §

1983. Specifically, Appellants assert that ABC agents and local

22
law enforcement officers conducted an unreasonable search of RNR on

June 2, 2004 and, in doing so, contravened Appellants’ clearly

established constitutional rights. Although the district court

expressed doubt about whether a constitutional violation occurred,

it did not expressly resolve that issue. Ruttenberg, 464 F. Supp.

2d at 549-50. Instead, the district court held that “assuming,

without deciding,” there was a constitutional violation, the

defendants were nonetheless entitled to qualified immunity. Id. at

550.

We first note that the district court erred in its approach

under Saucier v. Katz, 533 U.S. 194 (2001). Before moving to a

qualified immunity analysis, the district court should have

determined whether or not there was a constitutional violation.

This is the clear dictate of Saucier’s two-step process. See

Saucier, 533 U.S. at 201 (describing the “threshold question” as

whether “the facts alleged show the officer’s conduct violated a

constitutional right”); see also Miller v. Prince George’s County,

Md., 475 F.3d 621, 626-27 (4th Cir. 2007).

Accordingly, in reviewing the decision to dismiss Count III,

we must initially determine, based on the facts alleged, whether

there was a constitutional violation in connection with the search

of RNR. If there was no violation, we obviously need not inquire

into whether qualified immunity was appropriate. See Abney v. Coe,

493 F.3d 412, 415 (4th Cir. 2007). If a constitutional right was

23
violated, however, we must then examine “whether the right was

clearly established.” Saucier, 533 U.S. at 201.

With respect to the threshold inquiry, Appellants make three

claims as to why the search ran afoul of the Fourth Amendment. We

discuss each in turn.

1.

Appellants first argue that the administrative search of RNR

violated the Fourth Amendment because it was a pretext for a purely

criminal investigation.

In September 1993, RNR obtained a license to sell beer on its

premises. As a licensee, RNR consented to allowing the Virginia

ABC Board and its agents “free access” to “examin[e] and inspect[]”

its premises for the purpose of ensuring compliance with ABC

regulations. See 3 Va. Admin. Code § 5-50-70(B). It is well-

settled that such regulatory inspections do not need to be

accompanied by probable cause or a search warrant. See New York v.

Burger, 482 U.S. 691, 700-02 (1987) (holding that warrantless,

administrative searches of “closely regulated businesses” are

permissible under the Fourth Amendment); Colonnade Catering Corp.

v. United States, 397 U.S. 72, 77 (1970) (noting that the liquor

industry has long been “subject to close supervision and

inspection”). This is because licensees like RNR enjoy a

“particularly attenuated” expectation of privacy. See Burger, 482

U.S. at 700.
24
 Although administrative searches are a recognized exception to

the traditional warrant requirement, they cannot be used as a

pretext for what is, in reality, a purely criminal investigation.

See Burger, 482 at 716 n.27. Otherwise, such inspections could

serve as a convenient circumvention of the normal strictures placed

on law enforcement officers. Accordingly, our sister circuits have

held that an administrative search should be considered a pretext,

and thus deemed impermissible, if the inspection was performed

“solely to gather evidence of criminal activity.” See, e.g.,

United States v. Johnson, 994 F.2d 740, 742 (10th Cir. 1993); Bruce

v. Beary, 498 F.3d 1232, 1239-40 (11th Cir. 2007) (quoting

Johnson); see also City of Indianapolis v. Edmond, 531 U.S. 32, 37-

38 (2000) (indicating that a warrant is required if “the primary

purpose [of the search] was to detect evidence of ordinary criminal

wrongdoing”).

At the same time, however, a regulatory inspection does not

contravene the Fourth Amendment simply “because it is accompanied

by some suspicion of wrongdoing.” Bruce, 498 F.3d at 1242

(emphasis omitted); United States v. Thomas, 973 F.2d 1152, 1155-56

(5th Cir. 1992); United States v. Nechy, 827 F.2d 1161, 1166-67

(7th Cir. 1987); see also United States v. Villamonte-Marquez, 462

U.S. 579, 584 n.3 (1983). Rather, as the Tenth Circuit recently

explained, “an administrative inspection may encompass both an

administrative and a criminal law enforcement purpose.” United

25
States v. Johnson, 408 F.3d 1313, 1323 (10th Cir. 2005); see also

Bruce, 498 F.3d at 1250-53 (Carnes, J., concurring) (collecting

cases). It is only when the search is so divorced from a

regulatory purpose that it cannot be considered administrative in

nature that the Fourth Amendment is transgressed.

Based on the facts alleged in the complaint, we do not believe

the administrative search of RNR was “employed solely as an

instrument of criminal law enforcement.” Johnson, 994 F.2d at 743.

Rather, the record indicates that the search served primarily, if

not entirely, a regulatory purpose.

To begin, as Appellants acknowledge in their complaint, local

police officers observed ABC violations at RNR prior to the

administrative inspection in June 2004. This was clearly

permissible under Virginia’s ABC laws, which allow “law-enforcement

officers . . . free access to any retail licensed establishment for

the purpose of observation.” See 3 Va. Admin. Code § 5-50-70(C).

The officers subsequently contacted ABC Special Agent John Loftis,

the ABC official with authority over the territory that included

RNR, about conducting an administrative inspection. Special Agent

Loftis, as well as five or six additional ABC officials, then

joined local law enforcement officers in the search of RNR.

With respect to the search itself, there is no evidence or

allegation that law enforcement officers or ABC officials searched

for anything other than ABC violations when conducting the

26
administrative inspection. In fact, Appellants admit that the ABC

officers found an ABC violation during their search -- the failure

of RNR to mark two bottles of beer as samples –- and confiscated

two bottles of vodka as contraband from Ruttenberg’s office.

Moreover, as Appellants state in their complaint, the Virginia ABC

Board brought several administrative charges against RNR after the

raid. These charges eventually led to the ABC revoking RNR’s beer

license.

Thus, it is undisputed that ABC officials participated in the

search, an ABC violation was discovered during the search,

administrative charges were brought as a result of the search, and

those charges eventually led to the revocation of RNR’s beer

license. Moreover, there is no allegation that the search was for

anything other than ABC violations. Consequently, any claim that

the inspection was performed “solely to gather evidence of criminal

activity,” Johnson, 994 F.2d at 742, surely “stops short of the

line between possibility and plausibility,” Twombly, 127 S. Ct. at

1966.

Amicus curiae counters with the case of Swint v. City of

Wadley, Ala., 51 F.3d 988 (11th Cir. 1995). However, the facts

alleged here are clearly distinguishable from those in Swint. In

that case, the Eleventh Circuit found an administrative search to

be a pretext in part because “the officers did not simply search

for violations of the liquor laws by the establishment; instead, a

27
number of people were searched for evidence of their violation of

drug laws, searches to which they did not consent as part of any

regulatory scheme.” Id. at 999. Unlike the plaintiffs in Swint,

Appellants do not allege that the officers conducting the

inspection in this case searched for anything other than ABC

violations. Instead, they allege that the search was motivated by

“personal animus between defendant L and David Ruttenberg.” (J.A.

at 78.) However, such an assertion -- its speculative nature aside

-- is not relevant to our pretext analysis. See Crosby v. Paulk,

187 F.3d 1339, 1344 (11th Cir. 1999) (noting that because “[s]tate

officials can act lawfully even when motivated by a dislike or

hostility,” the court did not need to “address the alleged ill will

between” the officers and the plaintiff (internal quotations

omitted)); Johnson, 408 F.3d at 1323 (“Where officers are engaged

in a proper administrative search, the officers’ motive is

irrelevant.”).

In sum, based on the facts as alleged in the complaint, we

believe the search was not pretextual but rather a proper exercise

of the state and local governments’ legitimate interest in

investigating possible ABC violations. We therefore find no

constitutional violation with respect to this claim.

2.

Appellants next argue that even if the inspection was lawfully

authorized, the officers conducting the search exceeded the scope

28
of their statutory authority. Specifically, Appellants contend

that the officers unlawfully entered and searched David

Ruttenberg’s private office, thereby violating his Fourth Amendment

rights. Because the office was subject to inspection under the

authorizing statute, we find no such violation.

Section 5-50-70(B) of Virginia’s Administrative Code states

that the ABC “board and its special agents shall be allowed free

access during reasonable hours to every place in the Commonwealth

where alcoholic beverages are manufactured, bottled, stored,

offered for sale or sold, for the purpose of examining and

inspecting such place.” 3 Va. Admin. Code § 5-50-70(B) (emphasis

added).3 Virginia’s Alcoholic Beverage Control Act defines “place”

as “the real estate, together with any buildings or other

improvements thereon, designated in the application for a license

as the place at which the manufacture, bottling, distribution, use

or sale of alcoholic beverages shall be performed, except that

portion of any such building or other improvement actually and

exclusively used as a private residence.” Va. Code Ann. § 4.1-100

(2007). Taken together, these provisions cast a wide net.

Despite the authorization’s evident breadth, Appellants

contend that the search of Ruttenberg’s office was not permitted

3
As noted above, § 5-50-70(C) provides that “[i]n addition to
special agents, other law-enforcement officers in the performance
of their official duties shall be allowed free access to any retail
licensed establishment for the purpose of observation of activities
on those licensed premises during reasonable hours.” 3 Va. Admin.
Code § 5-50-70(C) (2007).
29
under § 5-50-70(B) because alcoholic beverages were not

“manufactured, bottled, stored, offered for sale or sold” in the

office itself. We reject such a narrow reading of the governing

statute.

As noted above, ABC officials may inspect any part of the

licensed premises –- that is, “the real estate, together with any

buildings or other improvements thereon” -- except those areas

“actually and exclusively used as a private residence.” See Va.

Code Ann. § 4.1-100. The district court found that Ruttenberg’s

“office is located on the premises of RNR.” Ruttenberg, 464 F.

Supp. 2d at 549. Furthermore, Appellants do not suggest that the

office was utilized as a private residence. Therefore, because the

office is part of the RNR premises and does not fall within the

statute’s lone exception (use as a private residence), we hold that

§ 5-50-70(B) authorized the ABC officials to search Ruttenberg’s

office as part of their administrative inspection.

Our holding is buttressed by an additional consideration: if

so-called “private offices” located on the premises of liquor

establishments were immune from administrative inspection, ABC

licensees such as Ruttenberg and RNR could utilize such spaces as

sanctuaries for illegal activity. In fact, during the inspection

at issue here, ABC officials confiscated two bottles of contraband

alcohol that were improperly stored in Ruttenberg’s office. If the

scope of § 5-50-70(B)’s authorization was as narrowly confined as

30
Appellants wish, ABC infractions would likely multiply in number

since they could easily be hidden from an ABC agent’s purview.

This would plainly run contrary to the broad inspection authority

granted to ABC officials under the Virginia statute.

3.

Lastly, Appellants claim that the administrative search of RNR

violated the Fourth Amendment because it was unreasonably executed.

Specifically, Appellants contend that the number of police officers

who participated in the search, as well as the conduct of the

officers during the inspection, was unreasonably excessive and,

therefore, constitutionally problematic.

As with any Fourth Amendment inquiry, the touchstone here is

reasonableness. Indeed, even when a search is lawfully authorized,

“the manner in which [the search] is executed is subject to later

judicial review as to its reasonableness.” Dalia v. United States,

441 U.S. 238, 258 (1979); Bruce, 498 F.3d at 1244 (holding that the

“execution of an administrative inspection must be reasonable in

order to be constitutional”); see also Duncan v. Barnes, 592 F.2d

1336, 1338 (5th Cir. 1979). Thus, while officers must be afforded

significant latitude in how they choose to execute a search, their

conduct must likewise “remain[] within the boundaries of

reasonableness.” Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir.

1997) (citing Dalia, 441 U.S. at 257); Tarpley v. Greene, 684 F.2d

1, 8-9 (D.C. Cir. 1982). When determining whether a search was

31
executed in a reasonable manner, courts must consider the totality

of the circumstances. This, of course, is a “highly fact-dependent

inquiry.” Lawmaster, 125 F.3d at 1349 (citing Tarpley, 684 F.2d at

9).

In their complaint, Appellants allege that over fifty law

enforcement officers, including six or seven ABC agents,

participated in a search of RNR that lasted more than an hour.

According to Appellants, many of the officers were heavily armed

SWAT team members dressed in full tactical gear. Appellants also

claim that RNR patrons and employees were ordered “against the wall

to be searched by heavily armed officers,” (J.A. at 85), causing

them to be “detained and terrorized,” (J.A. at 76). Finally,

Appellants allege -- in their briefs, but not their complaint --

that these patrons and employees were held at gunpoint for over an

hour.

Based on these allegations, we conclude that Appellants have

pleaded sufficient facts to survive a motion to dismiss. At this

stage of the proceedings, we simply do not know enough about the

circumstances surrounding the search and its execution to determine

whether the inspection was reasonably conducted and, if not,

whether qualified immunity is appropriate. Accordingly, we reverse

the grant of qualified immunity in favor of Detective L, Detective

W, Chief Evans, and Kifer on Appellants’ Fourth Amendment claim and

remand the case for further proceedings.

32
 4.

While we of course leave the conduct of such proceedings to

the district court, the boundaries of the inquiry upon remand are

worth mention.

As noted above, the inquiry here is one of reasonableness.

Thus, the guiding standard “is whether, under the circumstances

confronting the officers and disregarding their intent or

motivation, their conduct was objectively reasonable.” Crosby, 187

F.3d at 1351 (citing Graham v. Connor, 490 U.S. 386, 397 (1989)).

Because context matters when making such a determination, per se

rules are seldom appropriate.

For example, the number of officers present for the search,

while undoubtedly relevant, is not by itself dispositive.

Depending on the circumstances, it may be eminently reasonable for

fifty (or more) police officers to participate in the search of a

liquor establishment. See McNair v. Coffey, 279 F.3d 463, 466 (7th

Cir. 2002) (remarking that “nothing in the fourth amendment

specifies how many officers may respond to a call”). The number

may be gross overkill or it may be necessary to ensure the safety

of inspectors and patrons alike. Whatever the case, the number of

officers is but one consideration among many, and it certainly does

not on its face render the search unreasonable.

Ordering patrons and employees against a wall during the

search is likewise not per se unreasonable, as Appellants appear to
33
suggest. The Supreme Court has repeatedly made clear that

officers, when executing a search, “may take reasonable action to

secure the premises and to ensure their own safety and the efficacy

of the search.” Los Angeles County, Cal. v. Rettele, 550 U.S. ___,

127 S. Ct. 1989, 1992 (2007) (citing Muehler v. Mena, 544 U.S. 93,

98-100 (2005)). It is for this reason that the Supreme Court has

underscored that officers may “detain the occupants of the premises

while a proper search is conducted.” Michigan v. Summers, 452 U.S.

692, 705 (1981). Such detentions, the Court has noted, are

appropriate “because the character of the additional intrusion

caused by detention is slight and because the justifications for

detention are substantial.” Muehler, 544 U.S. at 98 (citing

Summers, 452 U.S. at 701-05).

Rather than resort to per se rules, courts must consider all

of the relevant circumstances surrounding the search. Thus, in

addition to the facts discussed above, the district court should

take into account, among other things, the following factors: the

nature of the place searched, the number of people the officers

expected to encounter, Crosby, 187 F.3d at 1343 n.4, the likelihood

that the officers “would be met with resistance or defiance,”

Bruce, 498 F.3d at 1245, and whether the search was unduly

prolonged. The court should also consider the specific conduct of

the officers involved, particularly whether they engaged in any

34
unreasonably threatening behavior, such as an abuse of weapons or

the causing of physical harm.

At the same time, however, it must be remembered that it is

not a court’s “role to tell local governments how to conduct an

administrative search.” Crosby, 187 F.3d at 1348. So long as the

officers behaved reasonably, the discretion about how to best

perform the inspection is theirs and theirs alone. The very term

“reasonableness” implies reasonable latitude and room for judgment.

And when officers “act in a reasonable manner to protect themselves

from harm . . . the Fourth Amendment is not violated.” See

Rettele, 127 S. Ct. at 1993-94.

We find three decisions by the Eleventh Circuit to be

instructive in determining whether, based on the totality of the

circumstances, an administrative search was unreasonably excessive.

In the first pair of cases -- Swint and Bruce -- the court found

administrative inspections to be “unreasonably excessive in

execution” and, therefore, in violation of the Fourth Amendment.

Bruce, 498 F.3d at 1244.

In Swint, the court found two searches of a nightclub to be

unreasonable based on the following facts: the raids involved 30-40

officers, including eight SWAT team officers; the inspections

lasted approximately one and one-half hours; during the search,

officers pointed their weapons at club employees and patrons; the

police grabbed and shoved one person against a wall and pushed

35
another patron off a bar stool; threatening comments, such as “Shut

up, or I’ll shut you up myself,” were made by officers to persons

detained; and an officer, with his finger on the trigger, pointed

a shotgun in someone’s face. See Swint, 51 F.3d at 992-93.

According to the Eleventh Circuit, such a “massive show of force

and excessive intrusion” could not be justified as a reasonable

part of the administrative search. Id. at 999.

Similarly, the court in Bruce found the administrative search

of an auto body shop to be unreasonably conducted. Bruce, 498 F.3d

at 1243-44. The search there involved twenty law enforcement

officers and lasted over eight hours. In addition, officers

arrived in unmarked vehicles and surrounded the property to block

the exits. They entered the premises with “automatic shotguns and

sidearms drawn.” Notably, one officer stuck a shotgun into an

employee’s back and continued to point it at him after the employee

turned around. Other employees were “lined up along a fence and

patted down and deprived of their identification.” See id. at

1236, 1244-45. As a result, the court found that the “massive show

of force in this case, like that in Swint, is not the sort of

conduct that was approved by the Supreme Court in Burger.” Id. at

1245 (internal quotation marks omitted).

While Swint and Bruce are examples of unreasonable searches,

the case of Crosby v. Paulk, 187 F.3d 1339 (11th Cir. 1999),

involves a search that was reasonably executed. In Crosby, forty

36
law enforcement officers searched a pair of adjoining nightclubs

for two hours. Notably, the officers “expected to encounter 500 to

700 patrons at the two nightclubs,” including many who would be

consuming alcohol. Id. at 1343 n.4, 1348. Upon entering, the

officers “ordered the patrons to remain where they were, and

instructed people on the dance floor to sit on the floor and not to

return to their tables.” Id. at 1343 n.5. The court found “no

evidence that any officer involved in securing the nightclubs and

conducting the investigation drew a weapon or threatened the

arrestees or any patrons.” Id. at 1343. Based on these facts, the

court found no “violation of a constitutional right in this

context.” Id. at 1352 (emphasis omitted).

It should be clear from the foregoing that any decision as to

reasonableness rests on the particular circumstances of a case.

Although we conclude that Appellants’ complaint survives a motion

to dismiss, we note that further factual development may show that

no constitutional violation occurred.

And if, after further factual development, the district court

determines that there was a constitutional violation with respect

to the search’s execution, it still must perform the second inquiry

under Saucier: whether the right violated was clearly established.

Saucier, 533 U.S. at 201. Of course, as we made clear in Turner v.

Dammon, 848 F.2d 440 (4th Cir. 1988), “[t]here is no question that

the Fourth Amendment prohibition of unreasonable searches and

37
seizures applies to the performance of administrative searches of

commercial property.” Id. at 446. Admittedly, “[t]he burden on

law enforcement officials in conforming their conduct to Fourth

Amendment standards is not great in the area of traditionally

regulated industries,” but it is a burden nonetheless. Id. at 447.

However, as the Supreme Court emphasized in Saucier, this does

not end the qualified immunity analysis. Rather, the inquiry “must

be undertaken in light of the specific context of the case, not as

a broad general proposition.” Saucier, 533 U.S. at 201 (emphasis

added). To be clear, this does not mean that a constitutional

right is clearly established only if the facts of a previous case

mirror in all respects those of the present case. See Robles v.

Prince George’s County, 302 F.3d 262, 270 (4th Cir. 2002)

(“Although notice does not require that the very action in question

has previously been held unlawful, it does mean that in light of

pre-existing law the unlawfulness must be apparent.” (internal

quotation marks omitted)); see also Simeon v. T. Smith & Son, Inc.,

852 F.2d 1421, 1453 (5th Cir. 1988) (explaining that courts should

not confine a previous case to its facts so that a rule would only

apply “to redheaded Walpoles in pale magenta Buick cars”) (quoting

Karl N. Llewellyn). Instead, the proper question to ask is

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

was unlawful in the situation he confronted.” Id. at 202 (citing

Wilson v. Layne, 526 U.S. 603, 615 (1999)). This ensures that

38
government officials performing discretionary functions are

shielded from civil liability insofar as their conduct, even if

mistaken, “could reasonably have been thought consistent with the

rights they are alleged to have violated.” Anderson v. Creighton,

483 U.S. 635, 638 (1987) (citing Malley v. Briggs, 475 U.S. 335,

341 (1986)); Saucier, 533 U.S. at 205. Whether the case may be

resolved on summary judgment is, of course, not possible to

determine at this time.

5.

In sum, we find that the administrative inspection of RNR was

not pretextual and that the search of David Ruttenberg’s private

office was lawfully authorized by the governing statute. With

respect to the search’s execution, we reverse the district court’s

dismissal of Count III on qualified immunity and remand this matter

to the district court for further proceedings.

III.

For the foregoing reasons, we affirm the dismissal of Counts

I, II, IV, and V of Appellants’ complaint and reverse the dismissal

of Count III.4

4
The district court dismissed without prejudice Appellants’
state law claims because no federal claims remained. See Shanaghan
v. Cahill, 58 F.3d 106, 109 (4th Cir. 1995) (“The doctrine of
supplemental jurisdiction indicates that federal courts generally
have discretion to retain or dismiss state law claims when the
federal basis for an action drops away.”) Because we are remanding
the Fourth Amendment claim for further consideration, we also
39
 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

reverse the district court’s dismissal of the state law claims so
that it may again consider its supplemental jurisdiction over those
claims.
40