Pleading Shortfall Defeats Federal Constitutional Suit Sparked by Bar Raid

On August 28, 2009, Suffolk County Police officers and some officers of the Town of Babylon staged a raid on Zodiac Lounge, a gay bar run by Felice Rubino in the Town of Babylon, New York, on Long Island.  During the raid, according to Rubino, the "Town Enforcer," John Farrell, referred to Rubino as a "gay bastard" and allegedly said to him, "gay issue or not, if you fuck with the Town, the Town will fuck with you." 

Rubino filed suit in U.S. District Court for the Eastern District of New York, claiming that the raid and the manner in which it was carried out, violated his constitutional rights under the 4th, 5th, 6th and 14th Amendments.  He particularly noted a claim under the 4th Amendment of the right to be free from unreasonable searches.  Rubino alleged that his business had been targeted by local law enforcement due to his sexual orientation and the sexual orientation of his customers.

Justice Denis R. Hurley found the complaint insufficient under current pleading standards for asserting a constitutional tort claim, and granted the Town's motion to dismiss the case for failure to state a claim.  However, recognizing that the plaintiff might be able to frame a better pleaded complaint, Justice Hurley allowed leave to refile by December 1.  Rubino v. Town of Babylon, 2010 Westlaw 4683511 (E.D.N.Y., Nov. 12, 2010).

The problem here lies mainly with the Supreme Court decision from 2009, Ashcroft v. Iqbal, 129 S.Ct. 1937, which has quickly become the bain of existence for many federal civil litigation attorneys.  Normally, in deciding a motion to dismiss, a court will treat as true the factual allegations of the complaint for purposes of testing its legal sufficiency.  But under Iqbal, the court said that civil plaintiffs are required to make sufficiently specific factual allegations about their cases in order to enjoy the "assumption of truth" in pretrial motion practice.  Sometimes this is quite difficult, since the plaintiff usually has not yet had discovery when confronted by a motion to dismiss.  In this case, Justice Hurley said, the plaintiff must allege a specific official policy of the town in order to assert a constitutional tort claim against the Town, but the plaintiff had failed to allege any specific policy that was central to the dispute. 

Liability in damages for actions committed by government officials is possible, but various Supreme Court doctirnes sharply restrict the range of cases in which such damages might be awarded, and this case appears to fall on the wrong side of the line, provided, of course, that the enforcement individual here were largely acting on their own, and not pursuant to some systematic policy of hararssing gay bars.   (Of course, if a policy of routine harassment against establishments owned or patronized by gays people could be established, there would be a potential equal protection issue against the Town if rubino could credibly allege that his establishment was specially targeted due to sexual orientation, and that this was not an instance of a more casual spontaneous raiding party out looking for violators of the law.



Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.