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Strange Fourth Amendment Decision:
The Fourth Circuit decided a Fourth Amendment case on Friday that strikes me as very weird. The case is Presley v. City of Chartlottesville.

  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.

  [UPDATE: A reader points out that in footnote 3 the court says that the curtilage question is unresolved because it wasn't settled by the complaint. I gather this means that the court is collapsing the separate search and seizure inquiries into some sort of combined test, and thus will somehow incorporate the Fourth Amendment search rules into a seizure analysis. I've never seen this done before, but it will at least make this part of the opinion less strange.]

  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.

  Thanks to reader Johnny Utah for the link.
Maniakes:
What remedies would be available to the plaintiff had the map been designed and published by a private business rather than by the city government?
9.26.2006 5:27pm
liberty_at_work (mail) (www):
I'm not a lawyer, so this is a purely amateur two centage. I think calling it a "search" creates a lot of confusion, especially with regard to whether there are state actors involved ("whether the party performing the search intends to assist law enforcement efforts") etc.

The basic question is whether trespass is a violation of property rights. If it is - if it is a property crime to intrude on anothers property, whether in their house or on their land - then it should be considered seizure.

I overheard a lead-in on Fox News the other day about a man trespassing in a woman's house and just rearranging her things and there was a question of whether he could be prosecuted -- well, of course he should! If it is her property, it doesn't matter whether he stole anything or not, so long as he wasn't given the key and permission to be there, he is tresspassing. The same should hold for government. It is a violation of property rights. And just as if I put your phone number out in an ad or sell tickets for tours of your home or in any other way conspire to abuse your property, so government should be held liable for the same violations.

The exact legal definition may be tricky, but this was clearly a violation of property rights and the state was clearly at fault.
9.26.2006 5:42pm
Tracy Johnson (www):
Like many commentaries written about judgments, I still find it difficult to understand: Who won the case, the plaintiff or the city?
9.26.2006 5:48pm
Owen Hutchins (mail):
A couple of points-
first, the property itself is less than an acre, so the path probably isn't that far from the house. The decision also nores that the defendents did not claim that the property in question extended beyond the curtilage.

second, I think the "siezure" is due to the municipality effectively opening for public use her private property.

thirdly, it states that the municipality did not simply prosecute her for putting up a barrier, but in fact changed a local ordinance in order to do so.

All in all, it seems they were actively attempting to have the trail become public, and not simply the perpetrators of an innocent mistake.
9.26.2006 5:53pm
Houston Lawyer:
I agree with Mr. Hutchins. The city was fairly clearly trying to take this property without the owner's consent. Bad facts make bad law.
9.26.2006 6:16pm
Anon950 (mail):
Orin --
I love your analysis and love that you think about both abstract questions and crunch case law. That sets you apart from tons of professors. But, if possible, could you please stop using "bracket" as a verb meaning "to put aside"? It sounds like you are trying to hard to be smart, which you need not do.
9.26.2006 6:26pm
billb:
Owen and Houston Lawyer: I think we all agree that this was a bad thing for the city to have done, but Orin's point seems to be that this was a 5th Amend. takings case not a 4th Amend. seizure case and that the homeowner should have argued such. Couldn't the judge have simple ruled that the city violated the landowner's 5th Amendment rights rather than coming up with this strained argument based on the 4th?
9.26.2006 6:34pm
OrinKerr:
Anon950,

Query whether bracketization manifests the associated dissonances that you posit.

Seriously, though, I don't recall using "bracket" before, and I never thought it was supposed to be a smarty-pants word. Does anyone else feel the same way?
9.26.2006 6:43pm
anonVCfan:
A bit awkward, yes. Smarty-pants, no.
9.26.2006 6:45pm
OrinKerr:
Agreed that it's kind of awkward, particularly in writing.
9.26.2006 6:47pm
lucia (mail) (www):
The city had the gall to prosecute her for putting up the razor wire fence?!

Gosh, I would have thought it made more sense to require the city buy her a fence and no trespassing signs and replace the stolen signs as needed for a period of at least two years after they reprint the map and make a new one available!
9.26.2006 6:48pm
3llen:
Just a random, crazy thought here, but is it possible that given the state of takings jurisprudents after Kelo, the court felt that the 4th amendment was this woman's best shot and keeping people off of her property?

It appears that the city was basically trying to take her land and make it in to a public trail-at the very least, they weren't doing much to prevent that. Had this woman tried to claim a 5th amendment/takings violation, would promoting interest in nature by essentially creating a nature trail through this woman's back yard qualify as a "public use" as the law stands today?
9.26.2006 6:49pm
3llen:
And for the record, I'm fine with bracket/bracketing/bracketization.
9.26.2006 6:50pm
liberty (mail) (www):
clearly if trespass is a violation of property rights, "nor be deprived of life, liberty, or property" is much more direct than a strained and confusing search based argument, and all the follow up questions it produces.

Does the judge not believe trespass to infringe on property rights?
9.26.2006 6:51pm
liberty (mail) (www):
3llen: "would promoting interest in nature by essentially creating a nature trail through this woman's back yard qualify as a "public use" as the law stands today?"

That is truly frightening. However, even in that case wouldn't they need to have followed eminent domain procedure?
9.26.2006 7:08pm
Anon950 (mail):
Orin -- Nice one. I wrote too broadly in possibly suggesting that you "use" the term bracket in some ongoing sense. I haven't been struck by it before in your writing. Maybe my spurn stems from my objection to using nouns as verbs ("please deplane now" and "she offices down the hall from me"); maybe it's as simple as the hard "k". But I can't recall anyone but the poseurs of law profs using "bracket." The down-to-earth ones used "put aside" or "reserve," or they just raised the question in the next sentence. Anyway, there's my $.03.
9.26.2006 7:23pm
Tim S:
I guess I assumed the plaintiff wanted to use a 4th Amendment legal theory rather than a 5th Amendment theory. The logical outcome of a taking claim is that the city ends up owning the property, whereas the plaintiff in this case seems to want to keep the property and force the city to write a check. Thus the choice of legal theory.
9.26.2006 7:34pm
john smith (mail):
Orin wrote:

> 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.

But reflect back on this:

> The city offered plaintiff some tax breaks in exchange for an easement that would allow people to come on the property

The city was willing to pay to use the land but was unwilling to pay to have maps reprinted. It sounds to me like they did want people to be able to go on the land. Of course, from this short description it is impossible to tell.
9.26.2006 7:39pm
bjv:
I don't know if I agree with the Fourth Circuit here, but I will play devils advocate. I think there is at least a plausible argument the court got it right. The current standard definition of seizure under the Fourth Amendment is a "meaningful interference with a person's possessory interest" over the property, that is, with the person's dominion or control over the property. See, e.g., Arizona v. Hicks, 533 U.S. 27. The Illinois v. McArthur case does not dispute this definition. If my skim of McArthur is correct, it simply evaluated whether the seizure of the defendant by not allowing him to enter is home was reasonable, it did not alter the definition of the term "seizure." Orin, I think your statement that a seizure only occurs when a state actor "keeps a private party out of his property" is a little to narrow of a definition. Furthermore, trespass does not equal "seizure" under the Fourth Amendment, as Oliver and Dunn show, although the two often coincide. Having a single law enforcement officer walk through a field once or sneak up to a barn does not necessarily interfere with the owner's use or possession of that property. But if you had hundreds of law enforcement officer's continually tromping through that same field or walking around that same barn there is a much stronger case such conduct does. It seems perfectly reasonable to me to find that state actors or state action that continuously or nearly continuously occupies a person's property, thereby preventing the owner from using it, meaningfully interferes with the owner's dominion and control over the property and amounts to a seizure under the Hicks definition. After all, part of private property is the right to exclude others. If that right of exclusion is meaningfully interfered with that seems to be a seizure to me.
9.26.2006 7:40pm
Fub:
Orin Kerr wrote:
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.
Owen Hutchins above covered a most important point: the city passed an ordinance specifically aimed at preventing Presley from stopping the trespass. I think that fact undercuts any claim that "the city didn't actually want people to go on to the land".

That the city's prosecution under the ordinance was dissmissed also tends to show the seizure was unreasonable.

It looks like Presley may have made the the 4th Amendment seizure claim because of some timeliness issue in filing an inverse condemnation claim, or failing to file one at all.
9.26.2006 7:54pm
plunge (mail):
Yeah, going on the 4th just seems bizarre. There seems to be a real case the the government acted in such a way as to devalue the property without compensation for their action, but that's obviously not as screechy a sell.
9.26.2006 8:06pm
Oren (mail):
What strikes me about this case is the simple inability of the parties to meet and come to an amicable solution. There is absolutely no reason to litigate this unless one of the parties is just being stubborn.
9.26.2006 8:56pm
Eugene G. Bernat (mail):
I do not see how this is a 4th Amendment case, however, this is certainly a violation of the plaintiff's 5th Amendment protections. The city should have to pay her, because they printed an incorrect map and then failed to correct their mistake. Certainly, the plaintiff is free to use the property, however, the state in effect took the private and made it public property.
9.26.2006 9:22pm
Realist Liberal (mail):
Oren~
I don't see how either side needs to be seen as stubborn automatically. The city may not want the expense of reprinting all of the maps and enforcing every trespass call. And the owner may not want to lose part of her property. Both of those seem like they are reasonable positions. Now some facts pointed out by Owen make it seem like the city was actually being more devious but if it really was a mistake then I see both sides.

Orin~
I've never thought you were trying too hard to be smart. Rather, I've found all of your blog posts to be quite concise and clear (which is one of the reasons I'm really bummed that you're dropping your solo blog). And I don't have a problem with bracket. Just my .04.
9.26.2006 9:35pm
Christopher M (mail):
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.

How is it "mere knowledge"? Isn't it at least -- to use the MPC formulations -- at least negligence, and arguably recklessness (once they knew of the incorrect map &didn't correct it)?
9.26.2006 10:23pm
liberty (mail) (www):
"My two cents"

"Anyway, there's my $.03"

"Just my .04"

I think we have a case of knowledge inflation...
9.26.2006 11:26pm
OrinKerr:
Christopher M,

Knowledge is a greater mens rea than recklessness or negligence, not a lesser one.
9.26.2006 11:29pm
ReaderY:
This seems like a straightforward 5th Amendment Takings clause. It could certainly be argued that the City's combined actions of publishing the map, amending its ordinance to prohibit barriers, etc., resulted in a de facto taking of the property to creat a public trail. A trail being a legimate public use, the landowner would clearly be entitled to just compensation.

But I don't see what makes it a 4th Amendment search-and-seizure rather than a 5th Amendments takings case.

No doubt a "sneaky-taking" case, where the taking occurs surreptitiously and the landowner isn't apprised of the existence of the taking, causes more harm than a straightforward, above-board taking. But this could be addressed as a due-process violation, lack of notice etc. It still isn't a search-and-seizure case.
9.27.2006 1:06am
ReaderY:
IF the city had acted in an above-board fashion, there'd be no problem. A trail (a kind of road) is a traditional public use, and it's no business of the courts whether a road that leads to "nature" (as opposed to some other destination) is a better or worse public use than any other. Moreover, the State permitting other people to invade ones land is a very straightforward example of an indirect taking -- it's a form of physical rather than a regulatory taking because there is a physical intrusion on the land which impede's the landowner's quiet enjoyment. Sneakiness may create additional due process or tort claims, but the fact of the matter is the City has the right to take the land, as long as it uses a proper process for the taking and gives just compensation. A violation of the 4th Amendment suggests there is no right to take in the first place. But here there is.
9.27.2006 1:16am
NickM (mail) (www):
Treating this as a 4th Amendment claim makes it even doctrinally more confusing in the analogous case of the city publishing the individual's telephone number as a city number.

Nick
9.27.2006 1:19am
Tom Holsinger (mail):
Inverse condemnation can be used in weird ways. I am aware of a California appellate decision where a fire negligently caused by a municipality's employees burned down some houses, or maybe some agricultural buildings (I forget which). The injured property owners sued for inverse condemnation and won.

Here the municipality published a negligently erroneous map to a property owner's damage. And the property owner was prosecuted for putting up razor wire to keep trespassers out.
9.27.2006 1:44am
Fub:
ReaderY wrote:
Sneakiness may create additional due process or tort claims, but the fact of the matter is the City has the right to take the land, as long as it uses a proper process for the taking and gives just compensation. A violation of the 4th Amendment suggests there is no right to take in the first place. But here there is.
I think the court's reasoning was straightforward, but it involved several steps.

Paraphrased from TFA pages 10-11:
Having a 5th Amendment claim does not bar a 4th Amendment claim.

A seizure occurs when "there is some meaningful interference with an individual's possessory interests in that property."

The city knew their use of the erroneous map would encourage public use of Presley's property since that was the purpose of the map.

The city made no effort to correct the error.

When Presley put up a razor wire fence the city initiated a meritless prosecution to force her to take it down.

"Fourth Amendment is implicated when government officials
prevent lawful resistance against seizures effected by private persons" [citing authorities]
The city made it a seizure by passing an ordinance and prosecuting Preseley to prevent her lawful resistance. The city tried to make her otherwise lawful resistance unlawful.
9.27.2006 2:09am
Ron Hardin (mail) (www):
I have the feeling that bracketing in an argument comes from Heidegger, or maybe Husserl. You could use ``sous rature'' if you want to allude to even more esoteric side effects.

There they're an acknowledgement that a word means something but without having made any claim to know yet what it is.
9.27.2006 6:54am
BJGuckian (mail):
I believe the seizure occured when the city failed to remedy the taking of complainant's land for public use and, then, criminalized complainant's acts to prevent trespasses.

The complaintant has effectively lost control of their property to the city and it's agents -- hikers following a city produced map.
9.27.2006 11:33am
SeaLawyer:

I don't see how either side needs to be seen as stubborn automatically. The city may not want the expense of reprinting all of the maps and enforcing every trespass call. And the owner may not want to lose part of her property. Both of those seem like they are reasonable positions.


In this case the city's position is not reasonable, they made the mistake and need to correct it. That is the bottom line.
9.27.2006 11:38am
lucia (mail) (www):
Using ''sous rature'' really would sound like you are trying hard to sound smart!

Since Orin asked, I have no problem with bracket.

On the other hand, it irks me when commenters with signatures like anonXXX gripe about their pet language use peeves.

Bracket is a word. Readers understood it. Advice to anonXXX: Get over it.

I believe we are up to giving 5 cents for commenting on language use now?
9.27.2006 11:45am
Richard Aubrey (mail):
Fourth Amendment vs. Fifth Amendment.
Nice discussion you've got going on here.

The city has acted outrageously, and even more so when the individual tried to defend her property.

There should be accountability--like various officials sued personally--for this crap.
9.27.2006 12:09pm
tomjedrz (mail):
IANAL, but this one seems clear to me. The City should ...

1. Correct the error -- i.e. correct and reprint the maps, and pull the incorrect ones out of circulation.

AND

2. Reimburse the owner for her expenses, including fencing, signage and cleanup costs.

Take care.
9.27.2006 1:50pm
Arbusto Spectrum (mail):
The plaintiff in this case was much too nice. My solution would have been to adopt two dobermans, install underground electric fencing to prevent them from leaving the property, and posted signs reading "Beware of Dog" instead of "No Trespassing".
9.27.2006 2:01pm
Tom Holsinger (mail):
Fub,

Good analysis.
9.27.2006 3:08pm
Christopher M (mail):
Orin: You're right, of course, about the MPC hierarchy -- I didn't put my objection well at all. The point I meant to make -- but didn't, really -- was that it's not "mere knowledge" in the way it would be if, say, the government merely knew that some privately produced map was erroneous and took no action to correct it. What if a government agent conducting an investigation sent an e-mail to a private citizen, intending to write "Please do not search Jones's house, but mistyped the e-mail and actually wrote "Please do search Jones's house"? If the agent later notices his error and fails to correct it, I'm not sure why that shouldn't count as state action.
9.27.2006 3:16pm
youngapprentice (mail):
Orin you debate whether the city "merely had knowledge" of the activitiy or did more. Based on my reading of the facts, it's a much closer question than your brief synopsis suggests. I think the reason you allow the claim to proceed is because the procedural posture of the case was 12(b)(6) and not summary judgment. On a different note, do you believe the court's citation to US v. Jacobson in Part II-B of the opinion is misplaced? The key to me is whether Presley's showing that the City failed to withdraw the map(after her complaints), is enough to show that the City had the requisite level of involvement to be subject to a 4A violation.
9.28.2006 12:06pm
Mark Sigmon (mail):
Interesting case. I wrote my law school note about "posting statutes" - statutes that presume that private land is open to hunters absent difficult-to-do posting of signs. 54 Duke L.J. 549 (2004). I concluded that the statutes effected no Fifth Amendment taking because the idea encapsulated by the statutes "inheres" in the background principles of property law under Lucas. I never even considered the Fourth Amendment, partly for the reasons stated in the post. (Moreover, it would be even more difficult to call random hunters without state-drawn maps "state actors;" but what if a state posted on its website a statement that "all unposted private land is open to hunting"? Might that make all hunters state actors?)

In any event, the commenters above taking such umbrage at the ostensible taking should remember the posting statutes (in the 29 states where they exist) - hunters can ramble over your land unless you post!
9.29.2006 4:44pm