BOWMAN, Circuit Judge.
Plaintiffs-appellants Glenn and Lucy Freeman filed this section 1983 action against various officials of the state of South Dakota in their official and individual capacities. The Freemans allege that the license to operate their campground was summarily suspended when they refused to submit to an administrative inspection of the premises without a warrant. The Freemans claim that their rights under the Fourth and Fourteenth Amendments were violated. The District Court granted defendants' motion for summary judgment, concluding that the defendants were entitled to absolute or qualified immunity from suit for their actions. We reverse.
The Freemans own a small farm in Jackson County, South Dakota and, since 1965, have operated the Belvidere East K.O.A. Kampground (the campground). On July 27, 1982, Michael Baker, Assistant Program Director for the South Dakota Department of Health (the Department of Health or the Department), and another Department employee arrived at the campground and requested permission to conduct an inspection, citing two sections of the South Dakota Codified Laws as their authority to do so without a search warrant. The Freemans refused to allow the inspection without a warrant, believing that there was insufficient statutory authority for at least part of the proposed search and that the inspection would not be conducted fairly. The Department officials departed without incident.
The following day, Baker wrote a memorandum to Richard Blair, the Secretary of the Department, recommending suspension of the Freemans' campground license unless Blair thought that a search warrant was necessary. Blair contacted the state attorney general's office for advice. Attorney General Mark Meierhenry and Assistant Attorney General Douglas Kludt reviewed the South Dakota statutes and Kludt subsequently met with Blair and advised him that no warrant was necessary to inspect the Freemans' property. Blair then called the Freemans and arranged an appointment for the following morning although the Freemans indicated that they still would require a search warrant.
On the morning of July 30, 1982, Blair, Baker, and Kludt arrived at the campground and requested permission to conduct an inspection. When the Freemans refused to allow the inspection unless the officials had a warrant, Blair served an order on the Freemans summarily suspending their campground license.
In March 1983, the Freemans filed this suit alleging, inter alia, that their rights under the Fourth and Fourteenth Amendments had been violated by state officials.
On August 29, 1984, two days before defendants moved for summary judgment, two employees of the Department appeared at the Freemans' campground desiring to conduct another inspection. The previous scenario replayed itself with the Freemans requesting a search warrant and the new Secretary of the Department of Health, Lawrence Massa, summarily suspending the Freemans' license on the ground that the "public health, safety and welfare imperatively required immediate action." Third Amended Complaint, Exhibit G.
On March 22, 1985, defendants again moved for summary judgment, claiming absolute and/or qualified immunity. The District Court granted defendants' motion and dismissed the Freemans' complaint with prejudice. The court held that Blair and Massa were entitled to absolute immunity under Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), because their decisions to initiate administrative proceedings were "analogous" to a prosecutor's decision to commence prosecution. Freeman v. Blair, No. 83-3026, slip op. at 7-8 (D.S.D. April 25, 1985). The court also concluded that the remaining defendants were entitled to qualified immunity. Id. at 5-6. Reviewing the precedents concerning warrantless administrative searches, the court found that "it was [not] unreasonable for defendants, in 1982 and September, 1984, to assume that they were entitled to inspect [the Freemans'] campground without a search warrant.... It follows from this that defendants are also entitled to qualified immunity" as to the license suspension claims. Id. at 5. The court observed that the Freemans were offered a hearing within several days of the suspension and indicated that this comported with the requirements of due process. Id. at 6.
The Freemans urge reversal on the basis that defendants Blair and Massa are not entitled to absolute or qualified immunity nor are any of the remaining defendants entitled to qualified immunity. In reviewing a district court's entry of summary judgment, this Court employs the same
We begin with the proposition that "qualified immunity represents the norm" for officials of the executive branch of government. Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982). This is so whether the suit is one against federal officials, as in Harlow, or one against state officials. Id. at 818 n. 30, 102 S.Ct. at 2738 n. 30; Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 2909, 57 L.Ed.2d 895 (1978). The Supreme Court in Butz stated that "officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope" because of some "special function" that the officials serve. 438 U.S. at 506, 508, 98 S.Ct. at 2911, 2912.
Among the "special functions" that create absolute immunity, the Court in Butz included "agency officials performing certain functions analogous to those of a prosecutor." Id. at 515, 98 S.Ct. at 2915. Justice White, writing for the majority, explained that executive branch officials need absolute immunity in this situation because "[t]he decision to initiate administrative proceedings against an individual or corporation is very much like the prosecutor's decision to initiate or move forward with a criminal prosecution" and that the discretion of the responsible officials "might be distorted" in the absence of complete immunity. Id. Defendants Blair and Massa argue that they are entitled to absolute immunity under this rationale for their decisions to suspend the Freemans' license since the license suspension was the first step of an administrative proceeding. We disagree.
Although there is a facial similarity between the factual setting here and the one in Butz, we believe that Blair's and Massa's actions prior to the institution of administrative proceedings distinguish this case from Butz. Before any administrative proceedings of the type contemplated in Butz occurred, the Department, with the explicit approval of Blair in 1982 and Massa in 1984, decided to conduct an inspection of the Freemans' campground. This is not the type of action that the Court in Butz contemplated as generating prosecutorial-type immunity. That type of immunity was reserved for instances in which the proceedings have "the characteristics of the judicial process," id. at 512, 98 S.Ct. at 2913, a conclusion not easily arrived at in regard to a decision to inspect. Instead, we view the decisions to inspect, and more particularly to inspect without a warrant, as ones that were not attended by any of the characteristics normally associated with the judicial process. These decisions are analogous to the kind of administrative or investigative functions for which courts ordinarily do not extend absolute immunity to prosecutors rather than analogous to the kind of function for which a prosecutor would be absolutely immune. See, e.g., Gray v. Bell, 712 F.2d 490, 498-99 & n.19 (D.C. Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984); Stepanian
This conclusion, however, does not end our inquiry. The question remains whether Blair and Massa should be absolutely immune for their decisions to suspend the Freemans' license, notwithstanding that they are not entitled to complete immunity for decisions to inspect without a warrant. Although we normally would view the license suspension as the initiation of administrative proceedings entitling Blair and Massa to absolute immunity, we believe that other considerations counsel that absolute immunity is not warranted in these circumstances.
In Nixon v. Fitzgerald, the Supreme Court instructed that "[i]n defining the scope of an official's absolute privilege," courts must recognize "that the sphere of protected action must be related closely to the immunity's justifying purposes." 457 U.S. 731, 755, 102 S.Ct. 2690, 2704, 73 L.Ed.2d 349 (1982). The purposes of prosecutorial immunity, to which an analogy is made here, are found in the desire to insure that the prosecutor may exercise his office with the vigor required to assure the public good and in the desire to prevent the injustice of subjecting to liability public officials who must exercise some discretion because of the legal obligations of their positions. See Imbler v. Pachtman, 424 U.S. 409, 422-27, 96 S.Ct. 984, 991-93, 47 L.Ed.2d 128 (1976); Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974). In particular, the immunity is intended to forestall the "serious danger that [a] decision to authorize proceedings will provoke a retaliatory response." Butz, 438 U.S. at 515, 98 S.Ct. at 2915; see generally Gray v. Bell, 712 F.2d at 497-502.
We do not perceive these dangers here and see no reason to extend absolute immunity in the instant circumstances. The decisions to inspect without a warrant clearly were functions for which Blair and Massa are not entitled to absolute immunity nor, as we conclude below, were the decisions reasonable under clearly established law. Yet it is precisely these decisions which generated all of the remaining actions for which absolute immunity now is claimed. We are unable to discern how extending absolute immunity to situations such as this one would promote the underlying purposes of the immunity. See Nixon, 457 U.S. at 755, 102 S.Ct. at 2704. It is unclear to us how the absence of absolute immunity here would impede an executive branch official's vigorous exercise of his office for proper purposes in the future or how it would be unfair to subject to liability an official who knew or should have known that his initial actions, from which the administrative proceedings flowed, were clearly improper. Therein lies the distinction between this case and Butz. In Butz, the defendants' actions were proper on their face but may have been taken for impermissible reasons; in the instant case, the initial actions taken by defendants were improper and therefore cannot justify the remainder of their actions. Moreover, as the Court noted in Butz:
438 U.S. at 505-06, 98 S.Ct. at 2910. These sentiments aptly fit this case as well.
We are thus left with the question of whether the state officials participating in the actions complained of are entitled to qualified immunity. The Supreme Court has held that "[e]ven defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard." Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984). The standard applicable to this case was set forth in Harlow. The Court stated in Harlow that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U.S. at 818, 102 S.Ct. at 2738. Subsequently, the Court made clear that qualified immunity for a constitutional violation is not defeated merely because an official's conduct violates some statutory or administrative provision. Davis, 104 S.Ct. at 3019-20. Thus, the only relevant question regarding immunity is whether the law allegedly violated was clearly established at the time of the conduct at issue. See id. at 3021; Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. If the law was clearly established, "a reasonably competent public official" is presumed to know the law governing his conduct and the immunity defense should fail. 457 U.S. at 818-19, 102 S.Ct. at 2738. As the Court has noted, this standard "gives ample room for mistaken judgments" and protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 1097, 1096, 89 L.Ed.2d 271 (1986).
We now turn to a brief examination of the Freemans' claims. Our task then will be to determine whether the law in the areas implicated in those claims was clearly established at the time of the actions here at issue and thus whether the state officials' qualified immunity defenses should fail.
We first observe that pro se complaints and supporting documents of the type now before us are entitled to indulgence upon review. See Hughes v. Rowe, 449 U.S. 5, 12-13, 101 S.Ct. 173, 177-78, 66 L.Ed.2d 163 (1980). The Freemans' third amended complaint contains four counts. Count One alleges that defendants knew or should have known that, under the Fourth and Fourteenth Amendments to the United States Constitution, a warrant was required to inspect the campground premises. Count One further alleges that defendants deprived the Freemans of their right to due process "by arbitrarily and capriciously" suspending their campground license because of their refusal to submit to a warrantless search. Thus, the latter allegation is one which in essence raises a claim of retaliation for the assertion of constitutional rights. Count Two contains claims under the South Dakota Constitution parallel to those of Count One. For the reasons expressed earlier, we do not address these claims separately. See supra note 2, at 170.
Count Three complains of defendants' failure to give the Freemans notice of the license suspension and an opportunity to be heard prior to the actual suspension of the license as allegedly required by the Fourteenth Amendment and the relevant provision of the South Dakota Constitution. The Freemans also assert that these actions were taken "as punishment for [their]
We view the Freemans' complaint as raising the question of whether the law was clearly established in three separate areas: (1) warrantless administrative searches; (2) due process requirements relating to license suspensions; and (3) retaliatory actions in response to the assertion of constitutional rights. Because we believe that Count Four merely reiterates the allegations already contained in Counts One and Three, we are convinced that these three categories encompass the entirety of the Freemans' claims. We will address each area in turn below.
Defendants contend that it was reasonable for them to assume in 1982 and 1984 that a warrantless administrative inspection of the Freemans' campground pursuant to the South Dakota statutory scheme was permissible. Defendants argue that the courts widely have upheld warrantless administrative searches of commercial property and observe that whether a warrantless inspection is proper is determined on a case-by-case basis. See v. City of Seattle, 387 U.S. 541, 546, 87 S.Ct. 1737, 1741, 18 L.Ed.2d 943 (1967). While the latter contentions may be accurate, we believe that the law in this area was clearly established by 1982 and thus are unable to agree with defendants that it was reasonable for them to assume that they properly could conduct warrantless searches of the Freemans' property.
The law has been settled for some time that administrative inspections of private commercial property are subject to the strictures of the Fourth Amendment. Id. at 543, 87 S.Ct. at 1739. Searches of commercial property no less than of residential property generally are unreasonable unless authorized by a valid search warrant. See Marshall v. Barlow's, Inc., 436 U.S. 307, 312, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305 (1978); Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1730-31, 18 L.Ed.2d 930 (1967). Because the expectation of privacy is significantly different between commercial and residential property, however, "legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment." Donovan v. Dewey, 452 U.S. 594, 598, 101 S.Ct. 2534, 2538, 69 L.Ed.2d 262 (1981). Even so, a warrant is required to conduct an inspection "unless some recognized exception to the warrant requirement applies." Barlow's, 436 U.S. at 313, 98 S.Ct. at 1820.
The Supreme Court has recognized exceptions to the search warrant requirement in the case of "`pervasively regulated business[es],' United States v. Biswell, 406 U.S. 311, 316 [92 S.Ct. 1593, 1596, 32 L.Ed.2d 87] (1972), and for `closely regulated' industries `long subject to close supervision and inspection.' Colonnade Catering Corp. v. United States, 397 U.S. 72, 74, 77 [90 S.Ct. 774, 776, 777, 25 L.Ed.2d 60] (1970)." Barlow's, 436 U.S. at 313, 98 S.Ct. at 1820. The Court explained that "[t]he element that distinguishes these enterprises from ordinary businesses is a long tradition of close government supervision, of which any person who chooses to enter such a business must already be aware." Id. When the legislature "has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the ... regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be
Even were we to conclude that the South Dakota commercial campground business is the type of "pervasively regulated" enterprise that the Court had in mind for this exception, the South Dakota statutes also would have to provide sufficiently detailed guidelines to assure the "certainty and regularity" of the warrantless inspections to qualify as a "constitutionally adequate substitute for a warrant." Dewey, 452 U.S. at 603, 101 S.Ct. at 2540. The Court has explained that warrantless inspections are constitutionally inadequate "if their occurrence is so random, infrequent, or unpredictable that the owner, for all practical purposes, has no real expectation that his property will from time to time be inspected by government officials." Id. at 599, 101 S.Ct. at 2538 (citing Barlow's, 436 U.S. at 323, 98 S.Ct. at 1826). Likewise, if the statutory scheme authorizes inspections but the legislature "made no rules governing the procedures that inspectors must follow, the Fourth Amendment and its various restrictive rules apply." Dewey, 452 U.S. at 599, 101 S.Ct. at 2538 (quoting Colonnade, 397 U.S. at 77, 90 S.Ct. at 777). In these instances, a warrant is necessary to insure that reasonable standards for conducting inspections exist and to protect commercial property owners from the "almost unbridled discretion [of] executive and administrative officers ... as to when to search and whom to search." Barlow's, 436 U.S. at 323, 98 S.Ct. at 1826.
The statutory authority relied upon by defendants consists of sections 34-18-24 and 34-18-26 of the South Dakota Codified Laws. Section 34-18-24 directs the secretary of health to "periodically inspect or cause to be inspected every ... campground operating within this state for compliance with the provisions of this chapter and the rules and regulations of the department of health." Section 34-18-26 grants the secretary "the right of entry and access to all areas ... at any reasonable time" for purposes of conducting the inspection required by section 34-18-24. Because we conclude that these provisions for warrantless administrative inspections do not meet the clearly established standards set forth above, we need not decide whether the commercial campground industry would fall within the Colonnade-Biswell exception.
A cursory review of the statutes quoted above reveals that they do not comply with the requirements set forth in Dewey and its precursors. The direction to inspect "periodically" does not "specifically define the frequency of inspection," Dewey, 452 U.S. at 604, 101 S.Ct. at 2540, and is so "unpredictable that the owner, for all practical purposes, has no real expectation that his property will ... be inspected by
Procedural due process limits governmental actions depriving individuals of "liberty" or "property" interests within the meaning of the Due Process Clause of the Fourteenth Amendment. Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976). Section 34-18-27 of the South Dakota Codified Laws provides that "[t]he secretary of health, upon determining the existence of a hazardous condition that may immediately endanger human life or be seriously detrimental to public health[,] may ... summarily suspend the license of any ... campground ... in this state."
In Parratt, a state employee negligently lost a prison inmate's hobby kit. The Court concluded that the prisoner had suffered
The Freemans' complaint asserts that defendants violated their due process rights "by arbitrarily and capriciously suspending [their] license" because they refused to submit to the warrantless searches. See Third Amended Complaint, ¶¶ 35-36. Defendants contend that the Freemans are complaining about unauthorized application of state procedures on the part of defendants, to wit, that defendants failed to comply with the statutory procedures governing summary suspension of campground licenses set forth in section 34-18-27. Defendants argue, therefore, that it was impossible for the State to provide a predeprivation hearing because the State could not have predicted the unauthorized acts of its employees in failing to follow the statutory guidelines. Thus, they conclude that Parratt and Hudson indicate that no predeprivation hearing was required in these circumstances because state law provides the Freemans with an adequate remedy.
We reject this argument. Our Court recently has observed that "Parratt ... applies only if a determination has been made that a predeprivation hearing is not required." Littlefield v. City of Afton, 785 F.2d 596, 600 (8th Cir.1986). In Logan v. Zimmerman Brush Co., the Supreme Court reiterated that "absent `the necessity of quick action by the State or the impracticality of providing any predeprivation process,' a postdeprivation hearing ... would be constitutionally inadequate." 455 U.S. 422, 436, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265 (1982) (quoting Parratt, 451 U.S. at 539, 101 S.Ct. at 1915). We are unable to conclude that providing a predeprivation hearing here was "impracticable." Surely decisions made by the highest officials in the executive branch of state government who have final authority over matters for which they are responsible do not constitute "random and unauthorized" acts. See Pembaur v. City of Cincinnati, ___ U.S. ___, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986) ("If the decision to adopt that particular course of action is properly made by that government's authorized decisionmakers, it surely represents an act of official government `policy' as that term is commonly understood."); Giglio v. Dunn, 732 F.2d 1133, 1137 (2d Cir.) (Cardamone, J., dissenting), cert. denied, ___ U.S. ___, 105 S.Ct. 328, 83 L.Ed.2d 265 (1984). The state officials in this case who decided to search the Freemans' campground without a warrant and to suspend the Freemans' campground license when they refused to submit to that search were senior-level officials. These officials knew what actions were going to be taken because they were responsible for making the decisions. Consequently, a predeprivation hearing easily could have been provided.
Finally, although neither party directly addressed the claim in its brief, the complaint asserts that defendants' actions were taken "because of" and "as punishment for" the Freemans' refusal to submit to warrantless searches. Because we believe that this language constitutes a separate claim, we briefly discuss the law dealing with retaliation for the assertion of constitutional rights.
It would seem an elementary proposition that actions taken in retaliation for an individual's assertion of a constitutional right are impermissible. The Supreme Court in Mount Healthy City Board of Education v. Doyle stated that "[e]ven though [a teacher] could have been discharged for no reason whatever, and had no constitutional right to a hearing prior to the decision not to rehire him, he may nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms." 429 U.S. 274, 283-84, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977) (citation omitted). Indeed, we believe that "it is well established that an act in retaliation for the exercise of a constitutionally protected right is actionable under Section 1983 even if the act, when taken for a different reason, would have been proper." Buise v.
For the reasons stated above, we reverse the decision of the District Court and remand for further proceedings consistent with this opinion.
436 U.S. at 320-21, 98 S.Ct. at 1824-25 (citations omitted).