Kozel v. Duncan, No. 10-7065 (10th Cir. 2011)
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Plaintiff-Appellee Paul Kozel owns and operates the Wranglers Club, a dance club and pool hall in Pushmataha County, Oklahoma, that sells "low-point" beer to its patrons. In January, 2007, Plaintiff complained to the district attorney’s office about a sheriff’s deputy who had begun parking his patrol car nightly in the Wranglers parking lot to watch for illegal activity. Subsequent weekends, the Sheriff and his deputies began entering the club during its hours of operation, checking identification cards and performing sobriety checks. Alleging harassment of his patrons, Plaintiff sued the Sheriff, several deputies and other law enforcement personnel in federal district court. The district court granted the deputies and other law enforcement personnel summary judgment. But the court only granted partial summary judgment to the Sheriff, leaving Plaintiff’s claims for First Amendment retaliation, Fourth Amendment unlawful entry, and Fourteenth Amendment harassment, as well as two state law claims. The court found that the Sheriff had qualified immunity from the Fourteenth Amendment claim. But the court denied the Sheriff immunity in his individual capacity from the First and Fourth Amendment claims. The Sheriff appealed the district court’s decision to the Tenth Circuit. The Tenth Circuit found that there is authority that “arguably supports” the Sheriff’s conduct, but that authority is not so clearly established “that a reasonable officer standing in [the] Sheriff[‘s] shoes would have recognized the unlawfulness of his conduct.” The Tenth Circuit reversed the district court’s decision that denied the Sheriff qualified immunity on Plaintiff’s First and Fourth Amendment claims.
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