Robert Siebert and Pamela Siebert, Plaintiffs-Appellants, v. David Severino, Defendant-Appellee.
No. 00-2654
United States Court of Appeals For the Seventh Circuit
Argued December 7, 2000--Decided July 6, 2001
Appeal from the United States District Court for the Central District of Illinois, Peoria Division. No. 98 C 1411--Michael M. Mihm, Judge.
Manion, Circuit Judge. David Severino, a volunteer investigator for the Illinois Department of Agriculture, seized three horses owned by Pamela Siebert, after having searched a barn owned by Pamela and her husband
I. Background1
Robert and Pamela Siebert own and reside on property in rural Carlock, Illinois.
The Sieberts, who at the relevant time owned seven horses, kept three in Oberg’s pasture and four in their own fenced-in riding and barn area. They also rotated the horses at times, bringing the three in from the pasture and turning out the others. The three horses kept in the pasture were fed twice a day; the Sieberts would tie buckets of grain to the fence posts and throw hay on the ground for them to eat. Water for the horses came from the creek that runs through the pasture, and in the winter, if the creek froze, Robert would break the ice with an ax handle. While there are no significant man-made shelters on the property, there are abundant trees and steep slopes which establish a windbreak for the horses. The Sieberts have kept horses at this location for аpproximately 15 years, and Pamela has extensive experience with horses and is knowledgeable about their needs and care.
On December 16, 1996, David Severino, who is a volunteer for the Illinois Department of Agriculture, received a complaint that the Sieberts’ horses were in a fenced area with no shelter or water. In response, Severino entered the Sieberts’ fenced-in paddock and turn-out area without a search warrant to inspect the horses. He also entered the Sieberts’ barn where the feed and hay were kept, taking a sample of each. In addition he entered and inspected Ms. Oberg’s property where the three horses were located. On the day he went to the Sieberts’, the temperature ranged from 28 to 42 degrees, and there was abundant dry ground in the Oberg pasture that was easily accessible by the horses. Before leaving the Sieberts’, Severino taped a Notice of Apparent Violation on the door to their house. The notice stated that the Sieberts had failed to provide the horses in the pasture with adequate shelter and protection from weather and had failed to provide them with humane care and treatment. It also stated that the horses were standing in mud and that there were no dry areas for them to stand and that they were drinking from the creek. The notice gave the Sieberts 72 hours to take corrective action.
When the Sieberts discovered the notice, they drove to Severino’s house to discuss the situation with him, but he was not home. The next day, Pamela called Severino’s office to arrange a meeting. Severino was not at the office, so Pamela explained the situation to the person who answered the phone for Severino. Pamela said that she would move the horses to the barn right away, if that was what she had to do. A person named “Leah” at Severino’s office instructed Pamela to leave the horses where they were--describing the layout as “a beautiful place” and “perfect . . . for horses“--and to await a call from Severino. Severino never returned the call, even though Pamela provided Leah with “all the numbers I could think of wherever I would be.” Instead, on December 19, he returned to their home with several police officers to seize the horses.
After the Sieberts’ horses were returned, they sued David Severino and the officers involved under Section 1983, alleging that the defendants violated their Fourth and Fourteenth Amendment rights. They also asserted a state law claim for trespass. All of the defendants, other than David Severino, were dismissed from the case, and then the parties engaged in discovery. During discovery, the Sieberts learned that Severino had told Chet Boruff, the Deputy Director of the Department of Agriculture, that the horsеs were kept in a confined, muddy area, were emaciated, near death, in danger, and needed to be removed immediately. However, as noted above, the horses were not kept in a confined, muddy area and were well-fed, and Severino does not now contend otherwise.
Following discovery, Severino moved for summary judgment on the constitutional claims. The district court granted that motion. The district court also dismissed the Sieberts’ state law trespass claim, concluding that a state Court of Claims had exclusive jurisdiction over it. The Sieberts appeal from the district court’s summary judgment ruling on the constitutional claims, but do not challenge the dismissal of the state law trespass claim.
II. Analysis
A. Fourth Amendment
The Sieberts sued Severino under Sеction 1983 for violating their Fourth Amendment rights, as incorporated by the Fourteenth Amendment. Actually, the Sieberts present two distinct Fourth Amendment claims: First, they contend that Severino violated their Fourth Amendment right to be free from unreasonable searches by entering and searching their barn; and second, they claim that Severino violated the Fourth Amendment’s prohibition of unreasonable seizures by seizing the three horses without a warrant and without exigent circumstances.
1. The search of the barn.
It is undisputed that Severino entered and searched the Sieberts’ barn. He did not have a warrant to do so. Severino contends that he did not need a warrant because the barn was not within the curtilage of the Sieberts’ home, and therefore it was outside the protection of the Fourth Amendment. The Sieberts concede that their barn, which is about 60 feet from their home, was outside the curtilage of their home, but maintain that because they had an expectation of privacy in the barn, it is still protected by the Fourth Amendment.
The Fourth Amendment protects persons against unreasonable searches and seizures of their “persons, houses, papers, and effects.” Both a home and the home’s curtilage--i.e., “the area outside the home
Thus, the question presented on appeal is whether the Sieberts had a reasonable expectation of privacy in their barn. They did. The barn was within 60 feet of their home. It had doors on it, which they often kept locked, and it was located in a fenced-in area of their property. Severino contends that the Sieberts did not have an expectation of privacy in the barn because they were not engaged in intimate activities in the barn. But how did he know that without first going inside? In fact, Severino entered the premises in response to a report of animal abuse. Such an enclosed structure is a typical location for a property owner to engage in private activities. Curiоus friends and neighbors, much less a government agent with a mission, would be expected to keep out. See, e.g., United States v. Wright, 991 F.2d 1182, 1186 (4th Cir. 1993) (holding that there was a legitimate expectation of privacy inside a barn).
Severino cites United States v. Dunn, 480 U.S. 294, 300 (1987), wherein the Supreme Court held that, even without a warrant, the police could constitutionally stand outside a barn and “peer[ ] into the barn’s open front.” But Dunn did not hold that the police could enter the barn itself. Id. at 303. The Fourth Circuit noted that distinction in Wright, when holding that a landowner had a legitimate expectation of privacy in a barn and therefore the Fourth Amendment prevented the police from entering the barn without a warrant. Severino didn’t just peer in--he went inside, searched the premises and inspected the feed and hay stored inside. See, e.g., Kyllo v. United States, 99-8508 at 4 n.1 (June 11, 2001) (“When the Fourth Amendment was adopted, as now, to ’search’ meant ’[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as to search the house for a book; to search the wood for a thief.’“) (quoting N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989)).
Alternatively, Severino argues that even if the Sieberts had a reasonable expectation of privacy in their barn, the law was not clearly established at the time that he searched their barn and therefore he is entitled to qualified immunity. Qualified immunity protects “government officials performing discretionary functions . . . 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A violation may be clearly established if the violation is so obvious
This case seems to fit within the “obvious” scenario--a reasonable state actor would know that he cannot enter a fenced-in, closed structure located within 60 feet of a person’s house without a warrant or some exception to the warrant requirement. But even if not reasonably obvious to Severino, a closely analogous case indicates that his conduct was unconstitutional: his search took place in 1996, аnd less than three years earlier the Fourth Circuit held that citizens enjoy an expectation of privacy in their barn. See Wright, 991 F.2d at 1186.2 Therefore, Severino is not protected by qualified immunity.
Even if Severino nosed around in the Sieberts’ barn, there appears to be little or no damage, so what’s the harm? The harm is that Severino violated the Sieberts’ constitutional rights. Had the Sieberts been doing something illegal in the barn and Severino’s search uncovered evidence, the Supreme Court mandates that such evidence be excluded (unless, of course, there is some exception to the exclusionary rule). In the criminal context, the evidence is excluded even though it might otherwise be used to convict the accused. But the Fourth Amendment does not only protect people accused of crimes. The law recognizes that law-abiding citizens can sue and recover general (or presumed) damages for a Fourth Amendment violation, even without proof of injury. Hessel v. O‘Hearn, 977 F.2d 299, 301 (7th Cir. 1992).3 Additionally, punitive damages are recoverable under Section 1983 even in the absence of actual damages where the jury concludes that the defendant’s conduct was “motivated by evil intent or involv[ed] reckless or callous indifference to the federally-protected rights of others.” Erwin v. County of Manitowoc, 872 F.2d 1292, 1299 (7th Cir. 1989). In the end, it will be for the jury to decide the proper quantum of relief, if any, for Severino’s violation of the Sieberts’ Fourth Amendment rights.
2. The seizure of the horses.
The Fourth Amendment also protects against unreasonable seizures. Pamela contends that Severino violated her Fourth Amendment rights when he seized her three horses. Initially, we note that because Robert admitted that he did not own the horses, and that the papers for the horses were all in Pamela’s name, Robert lacked standing to sue. Cf. Perry v. Village of Arlington Heights, 186 F.3d 826, 829-30 (7th Cir. 1999) (plaintiff lacked standing to challenge the constitutionality of the seizure and disposal of abandoned automobiles pursuant to the Illinois Motor Vehicle Code, where the plaintiff did not own an automobile). Pamela’s Fourth Amendment claim based on the seizure remains, and so we address that.
Specifically, Pamela contends that because Severino seized the horses without
Severino argues that he did not need a warrant to seize the horses under the Illinois Humane Care for Animals Act. Specifically, he relies on Section 11 of the Act which does not require an investigator to obtain a warrant, requiring only that the investigator “contact the Department [of Agriculture] and request authorization to impound the animal or animals . . . .”
Severino’s reliance on these provisions is misplaced for two alternative reasons. First, Section
Alternatively, if Severino did in fact obtain permission to impound the horses from the Department of Agriculture, the record (again read in the light most favorable to the Sieberts) indicates that the Department authorized the animals’ seizure based on Severino’s misrepresentation of their condition. Specifically, Deputy Director Boruff indicated that Severino had said that “the animals were in, oh, a near death situation, . . . and that thеy
Severino argues alternatively that he was entitled to seize the horses based on exigent circumstances. Exigent circumstances may justify a warrantless seizure of animals. See, e.g., DiCesare v. Stuart, 12 F.3d 973, 977 (10th Cir. 1993). Severino claims that this is such a case and points to his original Notice of Apparent Violation which stated that the animals were standing in mud, kept outside in the cold and werе drinking from a stream. Under these stated conditions, however, not only were the animals not in imminent danger, they were not in any danger at all. As the record establishes, the three horses were kept on a seven-acre pasture which while in parts was muddy, offered many dry standing areas. But horses, being horses, may prefer standing in the mud from time to time. And no doubt horses have been drinking out of streams long before humans harnessed and saddled them. This leaves the only remaining basis asserted of exigent circumstances--that the horses were kept outside in the cold. That too is ordinary and natural, even in the winter months. Although horses that are regularly turned out in pastures adjust to and thrive in cold weather, as with any animal, extreme cold can cause suffering, even death. But temperatures ranging in the 20’s and 30’s are not dangerous for healthy animals used to being outside. In any event, Severino could not have thought that the horses were faced with imminent harm because he left them at the Sieberts’ for three days after his initial search.
Alternatively, Severino argues that while the circumstances originally may not have justified the seizure, by the time of his second visit the temperature had
Once again, Severino asserts the defense of qualified immunity, arguing that he reasonably believed that exigent circumstances justified the seizure of the horses. The first question, given the conditions he found during the initial inspection, is whether a reasonable officer could have mistakenly believed that exigent circumstances existed justifying the warrantless seizure. Cf. Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998). We reject this argument because the record evidence demonstrates that a reasonably informed governmental worker authorized to ensure humane care would know that temperatures between 28-42 degrees, or even 4-14 degrees, do not constitute exigent circumstances justifying a warrantless seizure of horses. The second question raises more of a concern. Even if a reasonable humane care worker could believe exigent circumstances justified the seizure of the horses, in this case, the evidence presented at summary judgment indicates that Severino either greatly exaggerated
B. Due Process
Pamela’s final claim is a due process claim. She argues that Severino violated her right to procedural due process by removing her horses without providing her with a predeprivation hearing.8 A “procedural due process [claim] requires a two-step analysis. First, we consider whether the plaintiff was deprived of a constitutionally protected interest in life, liberty or property. If [s]he was, we then determine what process [s]he was due with respect to that deprivation.” Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996). Clearly, Pamela’s ownership interest in the three horses is a protected рroperty interest under the Fourteenth Amendment. Id.
Because Pamela was denied her property, we must now consider the constitutionally required process corresponding to the removal. “Due process requires that a person not be deprived of property without notice and an opportunity for a hearing.” United States v. Michelle’s Lounge, 39 F.3d 684, 697 (7th Cir. 1994). Absent exigent circumstances, or a random or unforeseen act, a pre-deprivation procedure is generally required before the government may deprive a person of their property. Zinermon v. Burch, 494 U.S. 113, 132 (1990); Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982). Moreover, “the requirement of due process, including a pre-deprivation hearing where feasible, applies to temporary as well as to permanent deprivаtions.” Penn Cent. Corp. v. U.S. R.R. Vest Corp., 955 F.2d 1158, 1162 (7th Cir. 1992). Therefore, we must determine whether the general rule mandating a pre-deprivation hearing applies, or whether a post-deprivation hearing would suffice to satisfy due process in this case.
Initially, we note that Severino does not argue that his actions in directing the removal of the horses were random or unforeseen. Nor were the circumstances (as they existed, not as Severino may have exaggerated) so exigent as to have justified dispensation of the pre-deprivation hearing. See supra at 12 - 14 (discussing lack of exigent circumstances in context of the Fourth Amendment). Thus, a pre-deprivation hearing is seemingly required. Yet even in the absence of those “enumerat[ed] discrete exceptions to the requirement of pre-deprivation process,” Penn Central, 955 F.2d at 1164, under Mathews v. Eldridge, 424 U.S. 319, 335 (1976), we must still ask “whether, all things considered, predeprivation process is a reasonable requirement to impose. That depends on the balance between the benefits and the costs of such process.” Penn Central, 955 F.2d at 1163.
In weighing the costs and benefits, the Supreme Court has set forth three considerations:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of
such interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interests, including the function involved and the fiscal and the administrative burdens that the additional or substitute procedural requirement would entail.
As to the first consideration, “there can be no dispute that an animal owner has a substantial interest in maintaining his rights in a seized animal. Such is especially the case with potential income-generating animals such as horses, cattle, swine, and the like.” Porter v. DiBlasio, 93 F.3d 301, 306-07 (7th Cir. 1996).9 Animal owners also have a substantial interest in their “mere” pets, and while the value of pets is different from income-generating animals, it is not necessarily lesser. Id. Second, the risk of an erroneous deprivation of Pamela’s interest in her horses through the procedures used is great, as the reality of this case demonstrates. The state used a volunteer investigator who apparently lacked sufficient knowledge about horses to determine whether appropriate care was given, and the procedures failed to provide the Sieberts with the opportunity to discuss the situation before the animals were removed. Moreover, the procedure used in this case allowed Severino to exaggerate the conditions he encountered in discussing the situation with the Department of Agriculture, and some sort of pre-deprivation hearing would have prevented or reduced the chance of an erroneous deprivation based on such misrepresentations.
As to the final factor, “the Government’s interests” and “the fiscal and the administrative burdens that the additional or substitute procedural requirement would entail,” we note that it would not be much of a burden for the government (in non-exigent circumstances) to allow animal owners to tell their side of the story before their animals are seized. After all, Severino waited 72 hours before seizing the horses and during that time the Sieberts contacted his office in order to discuss the situation, demonstrating the feasibility of pre-deprivation process. That is not to say that a full-blown hearing is required, Penn Central, 955 F.2d at 1162, but at a minimum Pamela had the right to some sort of pre-deprivation opportunity to be heard. Of exactly what sort, we need not decide. It may well be that had Severino met with Pamela, allowing her an opportunity to present her side of the case, that would be enough. We need not reaсh this question, however, because in this case not only did Severino never meet with Pamela before he took the horses, but his office expressly told Pamela not to remove the horses from the pasture and that he would contact her. But Severino never did, instead removing the horses the next day. Under these circumstances, we conclude that Pamela has presented sufficient facts to support a due process claim based on the horses’ removal without a pre-deprivation hearing.10
Severino is also not entitled to qualified immunity on this claim because it has been clearly established since at least Logan, 455 U.S. 422, that unless pre-deprivation
III. Conclusion
The Sieberts had a reasonable expectation of privacy in their barn, and have presented sufficient evidence from which a jury could conclude that Severino violated their Fоurth Amendment rights by entering their barn without a warrant. Of course, if a jury finds a constitutional violation, it will also need to assess the appropriate measure of damages for that constitutional violation. Pamela (but not Robert, who lacks standing) presented sufficient evidence to enable a jury to find a due process claim as well as a Fourth Amendment claim against Severino for seizing her horses without a warrant and without exigent circumstances. For the reasons set forth above, we also conclude that the facts read in the light most favorable to the Sieberts prevent Severino’s claim of qualified immunity. Accordingly, we REVERSE and REMAND to the district court for further proceedings consistent with this opinion.