September 27, 2006

4th Circuit 4th Amendment Case

by Sean Sirrine

The opinion in Presley v. City of Charlottesville can be found here. This is an extremely interesting opinion that I had to discuss a bit more in depth than what I did over at my personal site. I know that as a law student (especially one dumb enough to use his real name), I probably should refrain making statements to the effect that someone like Orin Kerr made a mistake, but in this particular instance I can't help myself. Mostly, I'm just ticked that I took his word on this one before I read the case. Even amazingly intelligent people don't get everything right. I'll cite to Orin Kerr's brief synopsis and opinion here at the beginning then go more in-depth below the fold. I am republishing the majority of the post that Kerr wrote:

Facts, as alleged in the complaint: Charlottesville, Virginia published a map incorrectly showing a public trail through the plaintiff's property. Plaintiff complained, but the city didn't change the map. Random hikers ended up walking through plaintiff's property because they thought it was public, and they ended up leaving behind trash and making a mess. This caused plaintiff a lot of stress and annoyance. The city offered plaintiff some tax breaks in exchange for an easement that would allow people to come on the property, but the plaintiff refused. She ended up putting lots of "no trespassing" signs on her property, but they were torn down. When plaintiff put up razor wire to try to keep the hikers away, she was prosecuted for it by the city (the prosecution was dismissed). Plaintiff called the police a lot when trespassers would arrive, and the police often came, but that didn't stem the tide. Plaintiff eventually sued the city on the ground that the city violated her Fourth Amendment rights.

Holding, in an opinion by Judge Motz joined by Judge Shedd: The random hikers who walked through plaintiff's property are state actors who "seized" the plaintiff's property under the Fourth Amendment. They are state actors because they were following the government's map. Further, they "seized" the property under the Fourth Amendment because they interfered with plaintiff's property and the plaintiff felt deprived of her property with so many people on it.

My two cents: This seems strange to me. First, I don't think there was a seizure of property under the Fourth Amendment (even if there was a taking under the Fifth). A Fourth Amendment seizure occurs when a state actor keeps a private party out of his property, as in Illinois v. McArthur. But surely a trespass itself isn't a seizure: the Supreme Court has always treated trespasses as searches, not seizures, and has developed the open fields doctrine in cases like Oliver v. United States and United States v. Dunn to determine when a trespass triggers the Fourth Amendment. Under the open fields doctrine, trespasses aren't searches unless they extend to the curtilage of the home; it sounds like the trail was far from the home, and thus was no search. Given the open fields doctrine, it would be rather remarkable if the same trespasses were a seizure. I gather that the claim in the complaint was that there were so many trespassers that plaintiff didn't feel comfortable using her land, but that doesn't sound like a Fourth Amendment claim to me.

Second, it seems jarring to me that the trespassers were state actors. Most circuits have looked to three factors to answer this question: whether the government knows of or acquiesces in the intrusive conduct; whether the party performing the search intends to assist law enforcement efforts at the time of the search; and whether the government affirmatively encourages, initiates or instigates the private action. And they have all held, as has the Fourth Circuit, that mere knowledge isn't enough. Here, it seems to me that this is case of mere knowledge: the city made a map and didn't correct it, causing people to go on to the land, and they knew that this was happening. (There's an interesting question as to whether knowledge means knowledge that this kind of thing was generally happening or knowledge that it was happening in a specific case with a specific hiker, but let's bracket that for now.) But as I read the facts, the city didn't actually want people to go on to the land: when the plaintiff would call the police, they would come and keep the hikers off. And the private parties out for a nice Sunday hike clearly didn't have intent to assist law enforcement. The opinion states in footnote 7 that this is not a mere knowledge case because the government was "more heavily involved" than in the typical case, but it's unclear to me what this means and the Fourth Circuit doesn't seem to provide any analysis of the question.

To be clear, these facts may be actionable on another theory, such as the Fifth Amendment's takings clause. But they don't sound like a Fourth Amendment violation to me.

Unlike Kerr, after reading the opinion I am not surprised at all that the court held that Presley's 4th Amendment rights had potentially been violated. I think that a reading of the opinion makes it clear that a state actor attempted to create a de facto easment across her land and did so willfully and with the aide of private actors.

The reason that the 4th Amendment can be brought into this case is that there might have been a seizure. (This entire case is revolves around whether it was properly dismissed below. This court does not reach the merits.) The dissent, (and Kerr), both seem to think that since this case was a "takings" for public use only the 5th Amendment should be at issue. I think the majority makes a clear case against that which I am surprised that Kerr does not recognize as being an amazingly strong opinion. Here are a few snippets from the case on why both 4th and 5th Amendment claims can be asserted for those of you like me that might see that as a problem:

...both the Fourth Amendment Seizure Clause and the Fifth Amendment Takings Clause address specific, rather than general, harms, and the Court has never held that one specific constitutional clause gives way to another equally specific clause when their domains overlap. The Supreme Court’s conclusion in Soldal that "[s]urely, Graham does not bar resort . . . to the Fourth Amendment’s specific protection for ‘houses, papers, and effects,’" 506 U.S. at 70-71, holds true here as well.

More importantly, even when the same appropriation does constitute both a seizure and a taking, meaningful legal differences continue to separate a Fourth Amendment seizure claim from a Fifth Amendment takings claim. To prevail on a seizure claim, a plaintiff must prove that the government unreasonably seized property. Soldal, 506
U.S. at 71. By contrast, to make out a takings claim, a plaintiff must demonstrate that the government took property without just compensation. Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194 (1985). Because the legal elements of a seizure claim and a takings claim differ, there is no danger that one constitutional provision will subsume the other, even if a single set of facts provides the basis for a cause of action under both.

So we have established that both claims can be made, now we have to see if a 4th Amendment claim can be made. Here are a few good snippets that make that case:
The dissent concedes that Presley, like the Soldals, has alleged a seizure, but argues that in the Soldal seizure there was "no element of public use," post at 22, while the seizure here was effectuated "for permanent public use," id. at 18. In the dissent’s view, "the presence of a public use is a critical fact that distinguishes this case from Soldal. . . ." Id. at 22.

The dissent’s "critical" distinction fails. Although the seizure at issue in Soldal — governmental assistance with an illegal eviction — may not have been for a public use, nothing in Soldal holds, or even suggests, that the Fourth Amendment only applies to seizures for nonpublic uses. Indeed, the Soldal Court reached precisely the opposite conclusion — that the "reason" for a seizure "is wholly irrelevant to the threshold question whether the Amendment applies." Soldal, 506 U.S. at 69. As Soldal explained, "the right against unreasonable seizures would be no less transgressed if the seizure of the house was undertaken to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on a whim, for no reason at all." Id. (emphasis added). Whether Presley alleges that the Defendants have seized her property for a public purpose — or by mistake and for no reason at all — the Fourth Amendment applies to the seizure.

I think that clearly states that the 5th Amendment doesn't knock out the 4th Amendment claim. Seizure for any reason at all seems to be very clear language. Now, here is the argument for why this is a seizure that I suppose Kerr didn't find very persuasive; you be the judge:
The district court alternatively held that no seizure had occurred here because Presley was not "completely deprived . . . of her possessory interests in her property." But a deprivation need not be this severe to constitute a seizure subject to constitutional protections. Rather, the Fourth Amendment also governs temporary or partial seizures. See United States v. Place, 462 U.S. 696, 705 (1983) ("The intrusion on possessory interests occasioned by a seizure of one’s personal effects can vary both in its nature and extent."); Pepper v. Village of Oak Park, 430 F.3d 805, 809 (7th Cir. 2005) (noting that "substantial damage to [a] couch" was a seizure); United States v. Gray, 484 F.2d 352, 356 (6th Cir. 1973) (holding that temporarily removing rifles from a closet to copy down their serial numbers was a seizure).

In fact, the Supreme Court has held that a seizure of property occurs whenever "there is some meaningful interference with an individual’s possessory interests in that property." United States v. Jacobsen, 466 U.S. 109, 113 (1984).

I honestly don't understand why Kerr isn't persuaded by this line of reasoning. As I mentioned earlier this isn't a case where the court is deciding the merits; the question is whether a case can be made that there was a seizure. I think the reasoning above is an excellent argument.

Now we get to the real crux of Kerr's disapproval. He states that it is "jarring" to him that the trespassers were state actors. For some reason he seems to have missed a huge claim that is made against the state which is that the state stopped Presley from raising a fence and prosecuted her for doing so after they had tried and failed to get her consent to the easment. This is the "heavy involvment" that Kerr missed:

Of course, it is private individuals, not City officials, who have actually interfered with Presley’s possessory interests here. Although private actions generally do not implicate the Fourth Amendment, when a private person acts "as an agent of the Government or with the participation or knowledge of any governmental official," then the private person’s acts are attributed to the government. Jacobsen, 466 U.S. at 113 (internal quotation marks omitted). The government need
not compel nor even involve itself directly in the private person’s actions. For example, in Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 614-15 (1989), the Supreme Court held that "breath and urine tests required by private railroads" implicated the Fourth Amendment when the railroads voluntarily complied with federal regulations
governing such tests.

As in Skinner, several factors in this case "combine to convince us that [the Defendants] did more than adopt a passive attitude toward the underlying private conduct" and that therefore the acts of private persons are attributable to the Defendants. See id. at 615. At some point, the Defendants knew that their map was erroneous.8 They also knew that the Rivanna trail map would encourage public use of the trail — this was, after all, the map’s purpose. Finally, Defendants also knew that the City’s involvement would communicate to trail users that there were no legal barriers to their use of the entire trail, including the portion that cut through Presley’s property. Cf. Rossignol v. Voorhaar, 316 F.3d 516, 525-26 (4th Cir. 2003) (seizure attributable to the government when official "gave ‘significant encouragement’ to its [allegedly private] perpetrators").

Nevertheless, despite this knowledge, the Defendants assertedly did nothing to correct their error, and consequently, in reliance upon the erroneous map, private individuals trespassed onto Presley’s yard. Moreover, when Presley attempted to protect her own property, the Defendants initiated a meritless criminal prosecution against her to force her to take down the razor wire. See Soldal, 506 U.S. at 60 n.6 (noting that Fourth Amendment is implicated when government officials prevent lawful resistance against seizures effected by private persons). These factors "are clear indices of the [Defendants’] encouragement, endorsement, and participation, and suffice to implicate the Fourth Amendment." Skinner, 489 U.S. at 615-16; see also United States v. Walther, 652 F.2d 788, 791 (9th Cir. 1981) (noting that a private search is attributed to the government if the government is "involved . . . indirectly as an encourager of the private citizen’s actions").

Hopefully, this information will help show that this opinion was well written and made quite a bit of sense. I think the court got it right on the issue of the 4th Amendment.

September 27, 2006 07:47 PM | TrackBack

omg the fourth amendment is so hard to find information on

Posted by: nina at October 26, 2006 10:37 AM
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