The Eleventh Circuit upheld a jury's determination that DeKalb County police officers violated the rights of Follies nude dancing club during a warrantless raid in which nearly three-dozen officers, some dressed in battle fatigues and masks, swarmed the club, handcuffed its co-owners and photographed each dancer.

A jury last year awarded just over $10,000 to the club, but Northern District Judge Leigh May granted almost $280,000 in attorney fees and expenses to their lawyers, Edmond, Lindsay & Atkins partner William Atkins; Wiggins Law Group principal Cary Wiggins; and Zack Greenamyre with Mitchell & Shapiro.

The fee award has since accrued interest and is now about $286,000, and Atkinson said they plan to seek an award of their appeal costs, as well.

Georgia courts are not always the most hospitable places for adult businesses, and Atkinson hailed the jury and judges for looking past any preconceptions in ruling for his clients.

Cary Wiggins

“This was a very difficult case for a generally unsympathetic client—a strip club—and we were really impressed with the jury's ability to put aside whatever feelings they may have had about the industry,” Atkinson said.

“They worked very hard and arrived at a fair verdict, and Judge May entered a very comprehensive, well-reasoned ruling denying the defendants' posttrial motions,” Atkinson said.

DeKalb County Attorney Viviane Ernstes did not respond to a request for comment.   

As detailed in the unpublished per curiam opinion by Judges Charles Wilson, Robin Rosenbaum and Frank Hull, the “overt compliance check” took place at about 5 p.m. on a Friday in 2013 when 34 county officers “including the SWAT unit's 12-member 'Strike Force,' every detective in both the vice and narcotics units, a permits-unit officer, ordinary uniformed officers and code-compliance officials” descended on the club along with two state revenue officers.

The club was near its 236-person capacity as some officers blocked the doors and others spread out among the crowd “yelling at everybody to 'shut the fuck up,' 'sit down' and 'don't move.'”

About 55 female dancers were on-site, and the officers had them line up and present their entertainer permits and ID one at a time and photographed each one with a whiteboard bearing her legal name, dance name and date of birth.

One dancer was “put to the floor to be arrested” for talking on her cellphone during the lengthy process.

No entertainers were cited for not having a valid permit.

Other officers gathered club employees in the bar area. Follies co-owner Steve Youngelson was handcuffed and held for a half-hour but not charged with any crime.

The club's customers were held for up to 30 minutes, then “strongly encouraged to leave unless they wanted to hang around with a 'whole bunch' of police officers,” the opinion said.

There were six arrests: A dancer, customer and parking valet were charged with obstruction; a dancer was charged with prostitution “based on conduct viewed by undercover officers before the inspection”; someone who was outside in his car was arrested on a probation violation; and one customer was arrested for possession of marijuana “based on conduct viewed by undercover officers.”

Officers also issued three citations for prohibited sexual contact based on conduct seen by undercover officers before the inspection, and Youngelson was cited for selling cigarettes illegally.

In January 2014, Follies, Youngelson and valet Joshua Schindler, sued DeKalb County and several officers claiming violations of their First and Fourth Amendment rights.

The jury found for the plaintiffs after a five-day trial and awarded Schindler $500 and assessed $5,000 in punitive damages against one of the officers for the valet's arrest.

The jury also awarded $10,392 to Follies after determining its right to be free of unreasonable search and seizure were violated.

The county filed a motion for judgment as a matter of law, arguing that the officers' behavior  was within constitutional bounds because it was reasonable and nonpretextual. In the alternative, it asked for a new trial.

May denied both motions, and the county appealed the verdict as it related to Follies; the portion relating to Schindler was not subject to the appeal.  

In upholding May and the verdict, the appellate panel said that, while the officers were authorized by county ordinance to inspect the club and its employees—and had done so before, with much less fanfare—the jury could credibly find their search “unreasonable in scope and execution.”

The 11th Circuit ruling gave five reasons the jury could have reasonably reached its verdict.

First, it said, “[p]rior inspections did not include the use of SWAT officers, were conducted by six officers at most, were 'completely cooperative,' and did not disrupt operations or alert the patrons,” the opinion said.

“Plus, the county abandoned the 'aggressive enforcement' plan after the April 2013 inspection at issue here, casting doubt on the administrative needs the county asserted justified the plan.”

“Second, the jury reasonably could have concluded that the number of officers was grossly disproportionate to the administrative needs that justified the inspection,” it said.

“Third, the jury reasonably could have concluded that the inspection was unreasonably extended for a purpose aside from the administrative needs that justified the inspection,” it said, noting that the DeKalb police lieutenant who ordered the sweep testified that one reason for making the dancers line up to be photographed was to “make future criminal investigations easier.”

“Fourth, we disagree with the county that the lack of evidence showing the officers' use of firearms is dispositive,” it said.

“While the officers did not draw or point weapons, they did engage in other intimidating behavior, such as shoving or grabbing employees, wearing masks, and using unprovoked profanity and aggressive language.”

The “fact that no weapons were drawn, though certainly relevant, does not alone sink Follies's claim,” it said.

Lastly, the panel wrote, “a jury reasonably could have concluded that the inspection here 'resembled a criminal raid' more than a 'regular, routine' administrative inspection.'”

The county did not appeal May's fee award, and the appellate ruling made no mention of it.

The panel's decision is not the end of Follies' trouble with local authorities. Its site was annexed by the city of Chamblee in late 2013, and the club has been paying the city $150,000 a year to remain in operation.

But in October Chamblee passed ordinances banning the consumption of alcohol at nude dancing clubs and requiring dancers to be partially clothed, among other restrictions.

In December, the club sued the city in federal court. That action is pending.