Brief of Robert Marlett and Gloria Omerkov, Appellees v Steve Lawing, Appellant (in the United States Court of Appeals for the Eleventh Circuit - Jacksonville, Florida)

 

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________________

APPEAL NO. 03-10988-HH

_______________________

ROBERT MARLETT and GLORIA OMERKOV, Appellees.

v.

STEVE LAWING, in his individual capacity, Appellant,

_______________________________

__________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE OF FLORIDA

JACKSONVILLE DIVISION

DC DKT NO. 3:01-cv-773-J-25HTS

_________________________________________________________________

Brief of Robert Marlett and Gloria Omerkov, Appellees

Robert Marlett, pro se

2180 3rd street

Jacksonville, FL 32218

904-757-2150

Appellee

Gloria Omerkov, pro se

2180 3rd street

Jacksonville, FL 32218

904-757-2150

Appellee

 
 

Summary of Argument

Defendant Lawing violated clearly established statutory and constitutional law1, and more specifically, the Fourth Amendment rights of the Plaintiffs2. His claim to Qualified Immunity was appropriately denied by the District Court, and his appeal is simply a meritless rehashing of immaterial argument, citing case law which is either not on point or misrepresented in his briefs. Defendant Lawing had clear warning that his actions were illegal, and the established law is clear that searches of the curtilage of a home are per se unreasonable. The case law presented by the defendant fails to support his own arguments made from it even slightly, and despite the fact that the issue is rather clear to the pro se plaintiffs, Lawing’s counsel argues that a government official who is required to know the law affecting his performance might have been reasonably confused. The law is clear; the case law is clear, and the defendant is not entitled to qualified immunity.

Argument

     

  1. I) Violations of Clearly Established Law

     

1" the Constitution requires ‘that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police. . . ." Wong Sun v. United States, 371 U.S. 471, 481-482

‘Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,’ United States v. Jeffers, 342 U.S. 48, 51,

searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions..’ Beck v. Ohio, 379 U.S. 89, 96.

2 bypassing a neutral predetermination of the scope of a search leaves individuals secure from Fourth Amendment violations ‘only in the discretion of the police’." KATZ v. UNITED STATES, 389 U.S. 347 (1967)

There are two reviews in the determination of Qualified Immunity at the Summary Judgement stage. The first is a technical look to see if a Constitutional violation actually occurred, and the second a more simplistic review to determine if the violator reasonably should have realized that what he was doing was unlawful3 . Government officials are required to know the laws which govern their conduct4 , so only those situations which require serious scrutiny merit the application of qualified immunity.5

In this case, the law has been clearly established for decades, and no recent changes have occurred. Lawing cites cases which are not on point, and omits citing the clear material differences in the cases in an obvious attempt to obscure the issues and the standard, and his counsel even goes so far as to suggest that counsels citing of irrelevant cases should be proof that established law is not clear. The inability of the defendants counsel to support his arguments and claims can hardly be said to grant merit to them, nor can it obscure established law.

The Open Fields Doctrine eliminated the Fourth Amendment protections of certain pieces of private property not directly associated with the home. The conditions however under which this doctrine applies are clearly off point in this case. The property involved here is not an open field, but the fenced yard around a home, and the open fields doctrine require the officers be lawfully on the property and observe open and patent illegal activity. None of these conditions apply. The officer was very obviously trespassing when he walked past the closed gate and no trespassing signs, and even after that had to search to find the violation which he was seeking. Clearly, this was hardly open and patent activity.

3 Anderson v. Creighton, 483 U.S. 635 ,638-39 (1987); Harlow v. Fitzgerald, 457 U.S. 800 , 818 (1982).

4 Harlow v. Fitzgerald, 457 U.S. 800 , 818, 819 (1982).

5 Harlow v. Fitzgerald, 457 U.S. 800 , 818 (1982).

Some Courts have described the driveway as only a semi-private area, and Lawing’s counsel repeatedly attempts to obscure the issue that this vehicle was not in a driveway, but inside a fenced yard. All of his argument about the lack of privacy in a driveway is entirely off point, and is not relevant to the issue. To his contention that this Court imposed elimination from Fourth Amendment protection may have obscured the understanding of a reasonable officer in Lawing’s shoes, it should be noted that this exclusion from protections is not new, and officers are required to know the law which governs their actions.6

The Courts have established clear and simple guidelines for determining what is protected curtilage, and none of the factors identified lends itself to questionable circumstances in this case.

"Extent-of-curtilage questions should be resolved with particular reference to the following four factors, at least to the extent that they bear upon whether the area claimed to be curtilage is so intimately tied to the home itself that it should be placed under the home's "umbrella" of protection: (1) the proximity of the area to the home; (2) whether the area is within an enclosure surrounding the home; (3) the nature and uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by passersby."

"we noted in Oliver for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage -- as the area around the home to which the activity of home life extends -- is a familiar one easily understood from our daily experience Viewing the physical layout of respondent's ranch in its entirety, it is plain that the fence surrounding the residence serves to demark a specific area of land immediately adjacent to the house that is readily identifiable as part and parcel of the house." 7

6 . "If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Harlow, 457 U.S., at 818-819

7 United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (Emphasis added, internal footnotes omitted)

The defendant’s brief further attempts to inject another question… whether society is prepared to accept Plaintiffs’ reasonable expectation of privacy. Plaintiffs contend that the Supreme Court has already accepted it, and society’s acceptance is clearly displayed in the number of people purchasing fences and "No Trespassing" signs. The creation of a zone of privacy and the announcement of that intent is in fact the primary purpose of these items – items which are rather common in our society. The defendant’s question is wholly meritless.

     

  1. II) Incompetence is not excusable error

     

Qualified Immunity is intended to protect all but the incompetent or willfully unlawful8 , but the Courts have made clear that a competent official is required to know the law which governs his conduct.9 Lawing’s assertions that he MAY have been confused about the law amounts to an admission of his incompetence, which disentitles him to qualified immunity. Whether incompetent or criminal -- justice and the law demand that he answer the charges against him rather than hide behind the "most favored criminal" status of qualified immunity. Furthermore, his counsel’s use of inapplicable case law as evidence that he may have been confused is hardly more than another showing of incompetence by Defendant City’s employees.

     

  1. III) Fair and Clear Notice  

8 Warren v. Coffee County Commission, 942 F.Supp. 1412, 1417 (M.D. Ga. 1995)

9 Harlow v. Fitzgerald, 457 U.S. 800 , 818 (1982).

Lawing’s counsel attempts to claim that the standard of review for determining what laws are clearly established should be that which this Court held at the time of the incident, despite that standard having been declared in error by the Supreme Court10 . The change in the standard used by this Court11 is not a change in the law, but a change in how, and often if, it is enforced upon government officials. There was no change in the Laws which govern the conduct committed by the defendant. While Lawing may have thought that he could violate the law with impunity, he cannot reasonably argue that he did not understand that invading a gated and signed yard to search for violations of law was not illegal, or that it was not a violation of the Fourth Amendment rights of the plaintiffs.

Plaintiffs’ obvious intent to create privacy has been previously detailed in the record, and was appropriately acknowledged by the District Court12 . The Defendant’s brief even admits that the attempts at privacy were clear, and attempts to claim that backing in a vehicle and planting plants somehow creates suspicion. While the conclusions drawn are absolutely ludicrous, his acknowledgement that he had fair notice of the intent to create privacy thoroughly establishes the issue in question. If attempting to conceal anything to create privacy is probable cause to eliminate Constitutional protections as the defendant’s counsel has suggested, then the Fourth Amendment is a legal nullity13 … which perhaps explains their position that a case seeking to enforce those protections by seeking damages for their violation is a "triviality clogging up the Federal Courts."

10 Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed. 266 (2002)

11 the standard was not recognized by the Supreme Court even prior to Hope. see Mitchell v. Forsyth, 472 U. S. 511, 526.

12 Docket# 69 Order denying Lawing’s Motion for Summary Judgement at page 6

13 KATZ v. UNITED STATES, 389 U.S. 347 (1967)

The Courts have held that an invasion of the curtilage of a home without a warrant is unreasonable per se.14 This precedent was not new, but decades old. Defendant’s counsel cites cases which are not material to the case at hand where Florida’s Courts have seriously stretched the open fields doctrine, but even those cases do not go so far as the position which Lawing seeks to justify in this Appeal. Counsel specifically cites Sarantopoulos, but fails to mention that there was never a physical invasion of the property prior to obtaining a warrant. The case then, is not even remotely similar to the matters at hand. He also cited State v Duhart, in which a police officer was called to the scene to investigate someone reportedly taking parts off of a stolen motorcycle. The court specifically noted that since the officer was lawfully on the property, checking the VIN numbers was not a violation of Fourth Amendment protections. Again, in this case Lawing was clearly in violation of law when he entered the property, so neither cited case is relevant to the matters at bar.

Lawing’s attempts to claim that his illegal invasion of private property were authorized by the Municipal Ordinance Code also hold no merit, since a nearly identical ordinance had been previously struck down as unconstitutional15 – providing fair and clear notice that his actions were unlawful even under the standard held by this Court prior to Hope.16

     

  1. IV) A Reasonable Man

     

14 Beck v. Ohio, 379 U.S. 89 , 96.

15 CAMARA v. MUNICIPAL COURT, 387 U.S. 523 (1967)

16 Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed. 266 (2002)

The reasonable expectation of privacy is discussed fully in Plaintiffs response to Lawing’s Motion for Summary Judgement, and Plaintiffs will rely upon the record for that issue.17

Any reasonable person would have known that an expectation of privacy existed, and that entry was uninvited and unlawful. From the aspect of whether or not it was clearly unlawful, the issue is equally simple. Several reasons for this exist:18 The boundaries were clearly defined with fences and gates. Plaintiffs have made no issue of the fact that the true property boundary is actually outside the gates, nor that other government officials have unknowingly crossed that boundary. If they had, those are the instances in which qualified immunity would attach, for the error was one of understandable ignorance of the facts – not of the law. Just such an issue was presented before the Courts in Maughon19 , a case which Lawing attempts to assert. In Maughon, officers with a valid warrant unknowingly crossed an unmarked property boundary in side a ranch. Interestingly, the warrant may have still been valid for the area searched, as it named the ranch, as opposed to a particular plot within the ranch. Qualified immunity was properly attached despite the constitutional violation.

The Courts have upheld the Fourth Amendment protections of the curtilage of a home despite narrowing the protections elsewhere, and the process for determining the extent of curtilage is not a complicated or technical one which governmental officials should not

17 docket # 54 at pages 11, 12, 13

18 Oliver, 466 U.S., at 182, n. 12, 104 S.Ct., at 1743, n. 12 "for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage -- as the area around the home to which the activity of home life extends -- is a familiar one easily understood from our daily experience."

19 Maughon v. Bibb County, 160 F.2d 658 (11th Cir. 1998)

be expected to know. 20 The facts within the record clearly show that Lawing’s invasion was into clearly marked curtilage, and was far beyond any objectively reasonable activity.

Furthermore, Lawing was required to know that the Ordinance which authorized warrantless entry21 was unconstitutional. The Court had held nearly identical ordinances as invalid.22 The ordinance which he was trying to enforce23 was also unconstitutional and void.24 Under the terms of Harlow, Lawing was required to know this, and behave himself accordingly. The knowledge required only to know that his invasion was unlawful was minimal at best.

     

  1. V) Searching, Looking, or Grabbing for Straws

     

Lawing attempts to raise some doubt about whether or not invading the protected curtilage of a home in search of violations of municipal code is actually a search, citing cases where the courts in question avoided dealing with the question directly, stating that in those instances, what happened may not have been a search, but if it was it was a reasonable search. 25 The facts of those cases differ so greatly from this one that they question simply does not apply. In both cases the search was justified under other existing case law, so the issue was moot, and the courts declined to rule specifically on the issue.

20 Oliver, 466 U.S., at 182, n. 12, 104 S.Ct., at 1743, n. 12 "for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage -- as the area around the home to which the activity of home life extends -- is a familiar one easily understood from our daily experience."

21 Jacksonville Ordinance Code, Section 518.123(a) and (f)

22 CAMARA v. MUNICIPAL COURT, 387 U.S. 523 (1967)

23 authorizes removal of "junk" vehicles without proper notice or a hearing… amounts to auto theft under color of law.

24 The trial court did not err in holding the ordinance unconstitutional under the Fourth Amendment insofar as it purports to authorize removal of inoperable vehicles from private property without first obtaining the property owner's consent or a warrant. (beyzayiff v. city of St. Louis ) Missouri court of appeals, eastern dist. 1997

25 United States v. Cotton, 721 F.2d 350 (11th Cir. 1983) police stop based upon probable cause related to stolen motor vehicles… the lack of a VIN number on the truck came into plain view of an officer lawfully in that position. "In this situation, determining

the VIN was not a search or, if it was, it was reasonable and no warrant was required" (emphasis added)

Furthermore, it matters little if the title of "search" is applied… it remains a constitutionally prohibited act, even if the defendant gives it a brand new name.26

     

  1. VI) Cite Unseen

     

The assertion that the reasonableness test should include not only what was known at the time but also the results of the search is in direct violation of all known case law, including the case cited.27

Given the facts known both before and after the search, it cannot be said that Norris and Towe's belief that something illegal was happening was unreasonable. It is the information known at the time of seizure and the reasonability of the inferences drawn from such information which is the key. (Emphasis added)

In this case it was not the search, but the seizure which followed which was in question, so it was what was know at the time (of the seizure) which was key. There is no case law to support the notion that the results of a search can justify its reasonableness, and the Courts have specifically spoken to that issue.

     

  1. VII) Missed the Point

     

Much of the case law presented by Lawing is either not on point at all, or actually argues against the position for which it was proposed. In several cases, the determining factor was that the officers were lawfully present on the property in the first place.28 In other cases cited by this defendant, the vehicles or searches took place in an open and unobstructed driveway- not in a fenced and gated private lot, and in still other cases the searches in question took place pursuant to an arrest29 or involved vehicles in police custody30 . As a final attempt to free himself from the consequences of his unlawful actions, Lawing points out that qualified immunity has been used as a license to commit murder in other cases. Those cases and their merits are not at bar here. The law is clear that in this case, based upon these merits, Lawing is not entitled to qualified immunity. Clearly, Lawing found no case law to support the position that he should be granted Qualified Immunity despite having violated Constitutional prohibitions against warrantless and unreasonable searches under the circumstances which present themselves in this case.

26 CRAIG v. STATE OF MISSOURI, 29 U.S. 410, 433 (1830) Is the proposition to be maintained, that the constitution meant to prohibit names and not things? That a very important act, big with great and ruinous mischief, which is expressly forbidden by words most appropriate for its description; may be performed by the substitution of a name? That the constitution, in one of its most important provisions, may be openly evaded by giving a new name to an old thing? We cannot think so . . .

27 Wren v. Towe, 130 F.3d 1154, 1158-59 (5th Cir. 1997)

     

  1. VIII) A Few Steps In – The New Standard Applied.

     

The Defendant has, without stating as much, proposed a new standard of review. In essence his argument here amounts to saying -- I shouldn't have to go to court because I only broke the law a little bit. More specifically, he proposes the "just a few steps in" standard. Following this proposal to its logical end is nearly humorous, but clearly shows its lack of merit.

Would entering "just a few steps" into a home not be a Constitutional violation? Would a warrantless body cavity search no longer be prohibited if the searching party only invaded the searched just a little bit? Would invading a secured military facility "just a few steps" no longer be trespassing? Would running "just a few steps" from a pursuing officer no longer be unlawful? I'll forgo wasting the Court’s time or my paper with further analogies of the application of such a ridiculous standard. It clearly fails the "reasonable" test.

28 United States v. Johnson, 413 F.2d, 1396, 1399 (5th Cir. 1969) The Johnson court held that checking the serial plate to further verify VIN numbers may not be a search, but if it was, it was a reasonable one. The officers had permission to inspect the vehicle, and to be on the property.

29 United States v. Cotton, 721 F.2d 350 (11th Cir. 1983)

30 Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)

The defendant asserts that trivial matters should not be clogging up the federal Courts… indeed, under the "just a few steps" standard, many cases would be entirely eliminated from the Court’s dockets – and the Constitution would be a meaningless scrap of paper. Contrary to the view so often asserted by the defendants in this case, violations of Constitutional law are not trivial matters,31 and the warrantless invasion the curtilage of Plaintiff’s home is hardly trivial. While defendants have repeatedly asserted the triviality of Constitutional law, Plaintiffs cannot, and this Court should not endorse such an untenable position.

     

  1. IX) Seeking The Protection of Void Law

     

Even if the Municipal Code’s authorizing unconstitutional invasions of private property were otherwise grounds to find Lawing’s clearly unlawful actions reasonable, He would still not be entitled to qualified immunity on those grounds because the law itself cannot provide him such protection.

31 Boyd v. United States, 116 U.S. 616 , at page 635, 6 S.Ct.524, at page 535, 29 L.Ed. 746 reads: "* * * It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. * * *

An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed32

Further, it does not require being so branded in open court to determine it’s nullity.

"The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void. . .unconstitutional law bears no power to enforce, it purports to settle as if it never existed, for unconstitutionality dates from the enactment of such a law and not such time as branded in an open court of law. . .it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed. No courts are bound to uphold it and no persons are bound to obey it." 33

     

  1. X) Affecting the Operations of Government

     

Lawing states in his brief that allowing qualified immunity to be removed from government officials in Lawing’ position would essentially cripple government’s ability to conduct itself. While this seems to imply that the defendant agrees that Code Enforcement here has absolutely no idea how to conduct itself within lawful bounds, I'll refrain from furthering this item of contention since only one instance is directly involved in the appeal now before this Court. Plaintiffs have never attempted to obscure the fact that this case is in fact an attempt to force Code Enforcement Officers to abide by the law, as well as seek compensation for the violations of their rights.34 The unconstitutional ordinances challenged in the portion of the suit brought against defendant City is further indication of this intent. Protecting the operation of government from meritless litigation was the stated purpose for establishing qualified immunity by judicial fiat in the first place, but furthering that protection to also eliminate cases such as this one which have clearly passed the standards set for the denial of qualified immunity would be to in effect

32 . Norton v. County of Shelby, 118 U.S. 425 (1886)

33 16 Am Jur 256.

34 Harlow v. Fitzgerald, 457 U.S., at 814 "(When government officials abuse their offices), action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees."

grant judicial approval to the violations of Constitutional law which this Court was intended to protect against35 . The fact that qualified immunity creates the most obvious and frequent violation of equal protection of the laws is also off topic on this appeal, since the standards set for its removal are met.

Without averring to the merits of any specific cases, the fact that qualified immunity has been used as a shield from justice for acts such as murder and the mass strip searching of fifth graders is a shame which brings in doubt the integrity of the entire judicial system, not grounds for allowing other Constitutional violations to be permitted. That Lawing has not committed some crime of violence does not betray the fact that he has acted in direct violation of clearly established law, and as such is liable for his actions. Those cases are not here at bar… this case is, and the merits of this case clearly show that Lawing is not entitled to Qualified Immunity. The District Court did not err in this matter.

35 "…The very purpose of Title 42USC#1983 was to interpose the federal court between the State and the people (Ex parte Virginia 100 US 339, 25 L, Ed, 6760) as the guardian of the people federal rights, to protect the people from unconstitutional actions under color of state law whether the action be executive, legislative or judicial." ." Pulliam v. Allen 446 US 522, 80 L, Ed, 2d, 565

"Congress enacted Title 42USC#1983….The remedy was considered necessary because state courts were being used to harass and injure individuals either because the state courts were powerless to stop deprivations, or were in league with those who were bent upon abrogation of federal protected rights." Pulliam v. Allen 446 US 522, 80 L, Ed, 2d, 565

 
-----
 

Certificate of Interested Parties

 

Appellees believe that the certificate filed by the Appellant is correct, which listed the following as interested Parties:

1. Adams, Honorable Henry Lee (U.S. District Judge);

2. Carlin, Lee S. (Counsel for City of Jacksonville);

3. Consolidated City of Jacksonville, Florida (Co-Defendant)

4. Lawing, Steve (Defendant/Appellant);

5. Marlett, Robert (Plaintiff/Appellee);

6. Omerkov, Gloria (Plaintiff/Appellee);

 

Statement on Oral Argument

 

The Appellees contend that oral argument should not be needed for the determination of this case as the law has been clearly established for nearly four decades.

 

Table of Contents

 

Cover Page ……………………...……………………………………pg i

Certificate of Interested Parties ………………………………………pg ii

Statement on oral argument ………………………………………….pg iii

Table of Contents …………………………………………………….pg iv

Table of Authorities…………………………………………………..pg vi

Statement of the issue ………………………………………………..pg 1

Statement of the case ………………………………………………...pg 2

Statement of the facts………………………………….……..pg 2

Disposition in the Trial Court………………………………..pg 4

Summary of Argument ………………………………..…………….pg 5

Argument…………………………………………………………….pg 7

       

I. The Standard of Review .………………………………….…..pg 7

       

       

II. The Framework for analyzing Qualified Immunity claims…....pg 7

       

       

III. Nonconsensual warrantless entry is a Constitutional violation .pg 9

       

       

IV. The Law was clearly established in Camara…………………..pg 10

       

       

V. No Extraordinary Circumstances exist in this case……………pg 15

       

         

  1. a. A reasonably competent officer would not interpret the ordinance to authorize Constitutional violations………………………..pg 16

         

         

  2. b. A reasonably competent officer would have known the Fourth Amendment is not limited to criminal investigations…….….pg 21

         

c. Officer Lawing’s trespass upon Appellee’s private property to inspect something that he could not see from a public vantage point was a search…………………………….……..……… pg 23

         

d. A reasonably competent officer would know the Fourth Amendment applies to physical intrusions into the curtilage of a resident’s home…………………………………………….pg 32

         

         

e. Officer Lawing’s allegation that the District Court failed to hold Plaintiffs to the burden of citing a materially similar case is not an appealable issue……………………………..………………pg 36

         

         

f. Neither an officer’s negligence excuse nor alleged fears of personal financial ruin entitle an officer to qualified Immunity…………………………………………………….pg 38

         

         

g. Entitlement to qualified immunity is determined by an impartial application of the law to the facts ………………………….. pg 39
 
Conclusion……………………………………………………………….pg 40
 
Footnotes ………………………………………………………………..pg 41
 
Certificate of Compliance ………………………………………………pg 42
 
Certificate of Service……………………………………………………pg 42
 
 
Table of Authorities
 
 
Constitutions:
 
 
Florida Constitution, Article 1 Section 23…………………………………………pg 12
 
Fourth Amendment to the United States Constitution………………………………pg 9
 
Fifth Amendment to the United States Constitution…………………….…………pg 24
 
Sixth Amendment to the United States Constitution………………………………pg 24
 
Fourteenth Amendment to the United States Constitution……….…………pg 9, 24, 28
 
 
Statutes and Ordinances:
 
 
California Government Code section 53074 …………………………………………pg 19
 
Florida Statutes, Title XXIII Motor Vehicles, F.S. 316.007…………………………pg 41
 
Florida Statutes, Title XXIII, F.S. 320.02 (1)………………………...………………pg 25
 
Jacksonville Municipal Ordinance Code Section 518.111………...……..pg 25, 27, 29, 31
 
Jacksonville Municipal Ordinance Code Section 518.123 ………………pg 16, 17, 18, 21
 
Jacksonville Municipal Ordinance Code Section 518.126…………..………………pg 39
 
Jacksonville Municipal Ordinance Code Section 518.203 …..……pg 3, 22, 23 ,24, 28, 41
 
Jacksonville Municipal Ordinance Code Section 518.204 …………………..pg 22, 24, 40
 
Jacksonville Municipal Ordinance Code Section 518.206………….………………..pg 40
 
Jacksonville Municipal Ordinance Code Section 518 Addendum B………….….pg 22, 24
 
Jacksonville Municipal Ordinance Code Section 656.410………………….……pg 27, 30
 
Pasadena Municipal Code section 6.08.110 …………………………………………pg 19
 
US Code 28 U.S.C. § 1291……………………………………………………………pg 4
 
 
Thesis and other Sources:
 
 
4 W. Blackstone, Commentaries *225……………………………………………..pg 33
 
Florida Attorney General Advisory Legal Opinion, Number AGO 82-7………… Pg 10
 
Florida Attorney General Advisory Legal Opinion, Number AGO 84-32. … pg 1, 9, 13
 
Florida Attorney General Advisory Legal Opinion, Number AGO 2002-27…….. pg 14
 
 
Cases:
 
 
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)………………………………………………………..…………...………….pg 14
 
Arizona v. Hicks, 480 U.S. 321 (1987)……………………………………..……pg 28, 29
 
Benton v. State, 329 So.2d 385 (1 D.C.A.Fla., 1976)………………..……………pg 9, 10
 
California v. Ciraolo, 476 U.S. 207 (1986)……………………………………...pg 33, 34
 
Camara v. Municipal Court, 387 U.S. 523 (1967 ……. Pg 1, 5, 10, 11, 12, 18, 20, 21, 22, 35, 37, 38
 
Coleman v. McHenry (E.D.Va. 1990) 735 F. Supp. 190, 193, affd. mem. (4th Cir. 1991) 945 F.2d 398…………………………………………………………………………pg 19
 
Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970)…………..………..pg 10
 
Conway v. Pasadena Humane Society, 45 Cal. App. 4th 163 (1996)……...…pg 18, 19, 20
 
Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir.1996)…………………………….pg 7
 
Elder v. Holloway, 510 U.S. 510 (1994)…………………………………….……….pg 37
 
Florida Department of Agriculture and Consumer Services v. Haire, 2003 FL 188 (FLCA, 2003)……………………………………………………………..………pg 5, 35
 
Frank v. Maryland, 359 U.S. 360 (1959)……………………………………pg 10, 11, 22
 
Gilker v. Baker (9th Cir. 1978) 576 F.2d 245, 247…………………………………pg 19
 
G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977)…………………………pg 31
 
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)………………pg 7, 8 , 14, 15, 21, 36, 38
 
Hill v. State, 238 So.2d 608 (Fla., 1970)…………………………………………….pg 18
 
Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 2516, 153 L.Ed.2d 666 (2002)……...pg 9
 
Hudson v. Hall, 231 F.3d 1289 (11th Cir. 2000)………………………………...…..pg 20
 
In re Winship, 397 U.S. 358 (1970)………………………………………………….pg 24
 
Jones v. City of Longwood, Florida, 404 So.2d 1083 (Fla. App. 5 Dist., 1981)….pg 1, 12, 13, 21
 
Malley v. Briggs, 475 U.S. 335, 345 (1986) ……………………………………pg 38
 
Mapp v. Ohio, 367 U.S. 643, reh. den., 368 U.S. 871 (1961)……………………..….pg 9
 
Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978)..…pg 12
 
Michigan v. Tyler, 436 U.S. 499 (1978)…………………………………….…..pg 10, 12
 
Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)…………………………………pg 28
 
Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)……... pg 4, 7
 
Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987)…………………………pg 30
 
Oliver v. United States, 466 U.S. 170 (1984)……………………………………pg 32, 33
 
Parsons v. State, 334 So.2d 308 (1 D.C.A.Fla., 1976)…………………………….…pg 10
 
Payton v. New York, 445 U.S. at 589. . . …………………………………………….pg 19
 
Pierce v. Underwood, 487 U.S. 552, 558 (1988)………………………………………pg 7
 
Sandstrom v. Montana, 442 U.S. 510 (1979)……………………………….………..pg 28
 
Sarantopoulos v. State, 629 S.2d 121 (Fla. 1994)………………………………..…..pg 35
 
Saucier v. Katz, 533 U.S. 194 (2001)………………………………………..………..pg 9
 
See v. City of Seattle, 387 U.S. 541 1967)………………………………..………pg 9, 12
 
Soldal v. Cook County, 506 U.S. 56 (1992)………………………………..………..pg 35
 
Texas v. Brown, 460 U.S. 730, 738-739 (1980)……………………………………. Pg 31
 
United States v. Davis, 423 F.2d 974 (5th Cir. 1970)…………………….……..pg 30, 31
 
U.S. v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987)……….........pg 5, 35
 
United States v. Sokolow, 450 F.2d 324 (5th Cir.1971)………………………..…..pg 9
 
Wren v. Towe, 130 F.3d 1154 (5th Cir. 1997)……………………………….……pg 32
 
 
STATEMENT OF THE ISSUE
 
 
Whether Officer Lawing is entitled to immunity from suit as a matter of law when, on June 15, 2001, Officer Lawing made a nonconsensual warrantless entry onto the Appellees' private property, consisting of their home and completely fenced curtilage, by opening a fence gate that was prominently posted with a no-trespassing sign and did so in violation of clearly established law and for the specific purpose of searching for evidence of an ordinance code violation. Leading Authority: Camara v. Municipal Court, 387 U.S. 523 (1967); Jones v. City of Longwood, Florida, 404 So.2d 1083 (Fla. App. 5 Dist., 1981); Florida Attorney General Advisory Legal Opinion, Number AGO 84-32, April 2, 1984 (copy attached).
 
 
STATEMENT OF THE CASE
 
 
Statement of Facts
 
 
Appellant Steve Lawing [hereinafter, Officer Lawing] is a code enforcement officer for the City of Jacksonville, Florida. The Appellees, Gloria Omerkov and Robert Marlett, reside at 2180 Third Street, Jacksonville, Florida. The Appellees' curtilage to their home is completely fenced and a no-trespassing sign is prominently posted on the fence gate. On June 15, 2001, Officer Lawing saw the Appellees' vehicle parked inside the confines of the Appellees' fenced curtilage with the fence gate clearly marked "no trespassing." The vehicle was backed up to a fence and tomato plants were growing up between the fence and the vehicle. Anyone visiting the home or making deliveries to the home would not readily be able to view the license plate of this vehicle. Officer Lawing did not observe an ordinance violation nor could Officer Lawing see the vehicle's license plate from any place where Officer Lawing had a right to be. Therefore, Officer Lawing ignored the no-trespassing sign, opened the fence gate, and entered the Appellees' curtilage for the specific purpose of conducting a search for an ordinance violation.
 
Officer Lawing did not have the Appellees' consent to enter their property nor did Officer Lawing have a warrant authorizing him to search the curtilage of Appellees' home.
 
Once on the property, Officer Lawing went to the back of the vehicle and allegedly pushed tomato plants aside to search the license plate for evidence. Officer Lawing's search revealed that the vehicle's registration tag had expired. Officer Lawing then issued a Notice of Violation of the Safety and Maintenance Code and placed the notice on the gate of the fenced property. The notice informed Appellees that they had 72 hours to remedy the violation. On June 19, 2001, Officer Lawing returned to the Appellees' property. He issued a citation to the Appellees for parking a junk vehicle on their property in violation of Section 518.203 of the City of Jacksonville Safety and Maintenance Code. The citation subjects the Appellees to government confiscation and disposal of their vehicle, an asset of considerable value to the Appellees, and conviction of a Class C Offense. Course of the Proceedings The Appellees, Gloria Omerkov and Robert Marlett, initiated a lawsuit against Officer Steve Lawing in his individual capacity for the violation of their Fourth Amendment Rights while Officer Lawing was working as a Code Enforcement Officer for the City of Jacksonville, Florida, and under the color of law. Officer Lawing claimed qualified immunity as an affirmative defense and motioned the trial court for summary judgment as a matter of law.
 
 
Disposition in the Trial Court
 
 
The trial court ruled that Fourth Amendment jurisprudence was clearly established providing Officer Lawing with sufficient notice that his conduct was unlawful, that Officer Lawing's unlawful conduct violated the Appellees' Fourth Amendment rights, and that Officer Lawing was not entitled to qualified immunity as a matter of law. Thereafter, Officer Lawing initiated this interlocutory appeal. A district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable decision within the meaning of 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).
 
 
SUMMARY OF ARGUMENT
 
 
Fourth Amendment jurisprudence is firmly and clearly established as applied to code enforcement officers. The United States Supreme Court decision in Camara v. Municipal Court has been the law of the land for 36 years. 387 U.S. 523 (1967). Absent exigent circumstances, a nonconsensual warrantless entry upon private property by a code enforcement officer is unreasonable and a violation of the resident's constitutional rights under the Fourth Amendment. Id. at 528-529. An objective public officer would reasonably know that he curtilage of a person's home is given the same stalwart protection as the home itself. Florida Department of Agriculture and Consumer Services v. Haire, 2003 FL 188 (FLCA, 2003) [citing U.S. v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987)]. An objective public officer would not reasonably believe it is lawful to make a nonconsensual warrantless entry into the private sanctuary of a resident's home or curtilage for the purpose of searching for evidence of an ordinance code violation. An officer's unreasonable ignorance that he has violated a clearly established right does not save his claim of qualified immunity. It is of no consequence that Officer Lawing may have misunderstood basic Fourth Amendment principles. The law does not protect a public officer from the consequences of his own incompetence. A reasonable public officer is presumed to know clearly established law. An objective government officer would not reasonably believe that a city ordinance can dispense with the requirements of the Fourth Amendment. An objective government officer would not reasonably interpret the ordinance code to authorize nonconsensual warrantless searches in violation of the Constitution. A statute does not trump the Constitution. Officer Lawing's arguments contrary to the foregoing are without merit. The court cannot hold that Officer Lawing is entitled to immunity from suit as a matter of law.
 
 
ARGUMENT
 
 
I. The standard of review is de novo on questions of law as applied to facts identified by the district court.
 
 
Appellate jurisdiction exists over appeals from the denial of summary judgment on qualified immunity grounds to the extent the appeal concerns pure issues of law, such as whether the law was clearly established. Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir.1996). Whether an asserted federal right was clearly established at a particular time, so that a public official who allegedly violated the right has no qualified immunity from suit, presents a question of law. Mitchell v. Forsyth, 472 U.S. 511, 528. (1985). That question of law must be resolved de novo on appeal. Pierce v. Underwood, 487 U.S. 552, 558 (1988). The appellate court determines whether the facts identified by the district court constitute a violation of a clearly established constitutional right. Id.
 
 
II. The framework for analyzing claims of qualified immunity is set forth in Harlow v. Fitzgerald, 457 U.S. 800 (1982).
 
 
Government officials performing discretionary functions are immune from prosecution in a civil lawsuit on a qualified basis and only 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). The claim of qualified immunity is an affirmative defense that must be pleaded by the defendant official. Id. at 815. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. Id. If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Id. At 818-819. The objective element involves a presumptive knowledge of and respect for basic constitutional rights. Id. In two recent cases, the United States Supreme Court has explained its holding in Harlow v. Fitzgerald, 457 U.S. 800 (1982). The Supreme Court explained the two prong test in qualified immunity determinations: 1. Whether the facts show a violation of a constitutional right, and if so-- 2. Whether it is clear from established law that the public official's conduct was unlawful, specifically, whether the state of the law gave the public official fair notice that his conduct was unlawful.
 
Saucier v. Katz, 533 U.S. 194 (2001) ; Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 2516, 153 L.Ed.2d 666 (2002).
 
 
III. A public official's nonconsensual warrantless entry upon private property is a violation of the occupant's constitutional rights.
 
 
The Fourth Amendment to the United States Constitution, made applicable to the states through the due process clause of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, reh. den., 368 U.S. 871 (1961), guarantees to all persons the right of privacy free from unreasonable state intrusion. The Fourth Amendment to the United States Constitution provides:
 
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
 
"Administrative searches or inspections such as those under consideration in the instant inquiry, which are conducted outside the judicial process without consent and without prior approval (as evidenced by an administrative search warrant) are not reasonable, unless a showing can be made that the administrative search or inspection falls within one of the well-established exceptions to this rule."
 
AGO 84-32 [citing See v. City of Seattle, 387 U.S. 541 1967); United States v. Sokolow, 450 F.2d 324 (5th Cir.1971); Benton v. State, 329
 
So.2d 385 (1 D.C.A.Fla., 1976); Parsons v. State, 334 So.2d 308 (1 D.C.A.Fla., 1976); and AGO 82-7. CF., Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970), and Michigan v. Tyler, 436 U.S. 499 (1978)].
 
"[A] municipal code inspector is without authority to enter onto any private, commercial or residential property to assure compliance with or to enforce the various technical codes of the municipality or to conduct any administrative inspections or searches without the consent of the owner or the operator or occupant of such premises or without a duly issued search or administrative inspection warrant." Id.
 
Fourth Amendment jurisprudence firmly establishes that Officer Lawing's nonconsensual warrantless entry upon the Appellees' private property on June 15, 2001, was unconstitutional.
 
 
IV. The law as applied to code enforcement officers was clearly established 36 years ago in Camara v. Municipal Court, 387 U.S. 523 (1967).
 
 
In 1959, by a five-to-four vote, the United States Supreme Court upheld a state court conviction of a home-owner who refused to permit a municipal health inspector to enter and inspect his premises without a search warrant. Frank v. Maryland, 359 U.S. 360 (1959). A few years later, upon recognizing a growing national concern over the increasing use of intrusive inspection techniques, the Supreme Court re-examined the issue to determine whether nonconsensual warrantless inspections violate Fourth Amendment rights. Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). In this landmark case, the Supreme Court stated the following:
 
"Under the present system, when the inspector demands entry, the occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself is acting under proper authorization. These are questions which may be reviewed by a neutral magistrate without any reassessment of the basic agency decision to canvass an area. Yet, only by refusing entry and risking a criminal conviction can the occupant at present challenge the inspector's decision to search. And even if the occupant possesses sufficient fortitude to take this risk, as appellant did here, he may never learn any more about the reason for the inspection than that the law generally allows housing inspectors to gain entry.
 
The practical effect of this system is to leave the occupant subject to the discretion of the official in the field. This is precisely the discretion to invade private property which we have consistently circumscribed by a requirement that a disinterested party warrant the need to search. We simply cannot say that the protections provided by the warrant procedure are not needed in this context; broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty. . . . "In summary, we hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment's protections."
 
Camara, 387 U.S. at 533-534. Thus, absent exigent circumstances, the Camara Court held that a nonconsensual warrantless intrusion upon private property by a code enforcement officer is unreasonable and a violation of the Fourth Amendment. Additionally, the Florida Appellate Court recognized Camara as the law of the land over 20 years ago upon affirming the dismissal of a wrongful death action against the City of Longwood when the City was sued on the grounds that it failed to abate a dangerous condition that caused a child's death:
 
"We also agree with the city's contention before the trial court that its duty to inspect under this ordinance was necessarily qualified, since the building inspector and fire chief were not authorized to enter upon private property to make an inspection without a warrant. In Camara v. Municipal Court of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), the Supreme Court held that the fourth amendment prohibited a building inspector from entering private property to conduct an investigation without a warrant issued upon probable cause. Accord, Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978); Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); See also Art. I, § 23, Fla.Const. (1980).
 
There was no duty on the building inspector and the fire chief under the ordinance or otherwise to seek to obtain the owner's consent to go upon this private property. "We hold that, while the duty of the city building inspector and fire chief to make inspections was an operational level activity concerning which sovereign immunity has been waived, the city's ultimate duty under this ordinance to correct the dangerous condition was subject to the conditions precedent that the city council determine that the building was unsafe and that the property owner, after notice, failed to correct the condition of the building, which conditions were not alleged to have occurred. Also, the city's duty to inspect private property under this ordinance is subject to the overriding constitutional prohibition against governmental agents entering such private property without a warrant based upon probable cause. For these reasons the complaint herein did not state a cause of action against the city and this deficiency was properly considered by the trial court in granting a summary judgment in this case."
 
Jones v. City of Longwood, Florida, 404 So.2d 1083 (Fla. App. 5 Dist., 1981) (emphasis added). Two decades ago, the Attorney General for the State of Florida issued an advisory opinion stating the following:
 
"[A] municipal code inspector is without authority to enter onto any private, commercial or residential property to assure compliance with or to enforce the various technical codes of the municipality or to conduct any administrative inspections or searches without the consent of the owner or the operator or occupant of such premises or without a duly issued search or administrative inspection warrant."
 
AGO 84-32.
 
The 1984 Attorney General Opinion is persuasive authority that the law was clearly established long before June 15, 2001. The Attorney General recently issued another opinion reaffirming the 1984 opinion. See AGO 2002-27. The Supreme Court defined the phrase "clearly established" as used in the language of Harlow as follows:
 
"The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law, the unlawfulness must be apparent."
 
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). The Appellees respectfully submit that the contours of the Appellees' Fourth Amendment rights are sufficiently clear that a reasonable code enforcement officer would have fair notice and understand that a nonconsensual warrantless intrusion upon the Appellees' private property is unlawful conduct. Because the law was clearly established and a reasonably competent public official should know the law governing his conduct, Officer Lawing's immunity defense should fail. See Harlow v. Fitzgerald, 457 U.S. 800, 818-819 (1982).
 
 
V. Officer Lawing's arguments do not establish any extraordinary circumstances entitling Officer Lawing to qualified immunity.
If the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. Harlow, 457 U.S. at 819. But again, the defense would turn primarily on objective factors. Id. On appeal, Officer Lawing argues the following: a) that the ordinance appears to give him the "right" to enter without a warrant; b) that a code enforcement officer could reasonably believe that the rules that govern his conduct are less restrictive than the rules governing a police officer who is investigating a crime; c) that his actions did not constitute a search; d) that Appellees have no reasonable expectation of privacy in the curtilage to their home even though it was completely fenced and posted with a no-trespassing sign; e) that the district court failed to hold plaintiffs to the burden of citing a materially similar case; f) that he should not be subjected to personal financial ruin due to his own negligence or innocent mistakes; and g) that alleged unlawful conduct in other cases is worse than his own conduct. As discussed below, it is clear that none of Officer Lawing's arguments establish extraordinary circumstances that prove that he should not have known of the relevant legal standard.
 
 
A. An objectively reasonable code enforcement officer would not interpret an ordinance to authorize unconstitutional conduct.
 
 
Contrary to Officer Lawing's argument, Section 518.123 of the Jacksonville Property Safety and Maintenance Code does not authorize or appear to authorize a code enforcement officer to enter private without the occupant's consent or a warrant. Section 518.123 is set forth below in its entirety:
 
Sec. 518.123. Right of entry; notice of inspection. (a) The Chief is authorized to enter any building, structure or premises at any reasonable time for the purpose of performing his duties under this chapter. A reasonable time shall be deemed to be between the hours of 8:00 a.m. and 9:00 p.m., Monday through Saturday.
 
If any owner, occupant or other person in charge of a building, structure or premises subject to the provisions of this Code refuses, impedes, inhibits, interferes with, restricts or obstructs lawful entry or access to any part of the building, structure or premises where an inspection authorized by this chapter is sought, the Chief may seek an inspection warrant pursuant to Florida Law. (b) At the time of inspection, the Chief shall properly identify himself and shall advise the occupant of his right to refuse entry to the non-public areas of the building, structure or premises. He shall further advise the occupant that an inspection warrant may be obtained if entry is refused. (c) The Chief shall develop appropriate documents by which to serve notice in an area in which he intends to carry out a scheduled area wide inspection program. These documents shall include a notice to be delivered to each household or owner which shall include the following: (1) A summary of the requirements of this chapter for which an inspection is being made to determine compliance therewith. (2) A statement advising the occupant or owner that entry for the purpose of inspection may be denied. (3) A statement that a notice of violation issued pursuant to the inspection may be appealed to the city's Code Enforcement Board. (d) At the time of inspection, the Chief or his authorized representative shall properly identify himself and shall advise the occupant or owner verbally of all the provisions of subsection (a) of this section which were required to be included in the notice. Where the inspection is based upon a complaint or probable cause, a written notice of intent under this section shall not be required. (e) In cases of emergency where extreme hazards are known to exist which may involve the loss of life or severe property damage, the limitations of this section shall not apply. (f) The Chief, or his authorized representative, shall have the right of entry upon real property while in the discharge of his duties in removing, terminating or abating a public nuisance under this chapter.
 
(Ord. 96-458-297, § 1) (emphasis added).
 
Except for exigent circumstances, the ordinance does not allow nonconsensual warrantless searches of private property. In view of the Supreme Court's landmark holding in Camara, no competent code enforcement officer would interpret Section 518.123 to authorize unconstitutional nonconsensual warrantless entries upon private property. See also, Hill v. State, 238 So.2d 608 (Fla., 1970) (an ordinance is upheld as constitutional if it is capable of an interpretation that does not violate constitutional guarantees). A California court rejected a similar argument that a statute appeared to authorize warrantless entries upon private property by animal control officers in a well-reasoned opinion:
 
"Consistent with the practice of Humane Society officers in the field, on appeal defendants largely ignore the issue of whether exigent circumstances justified the entry into the Conway home. Instead, they rely on statutory authority for the proposition that animal control officers can make a warrantless, nonconsensual entry into a residence to seize the homeowner's dog for a prior violation of the leash law. . . . "We do not read these enactments as dispensing with the Fourth Amendment's requirement that an official entry into a home be justified by a warrant, consent, or exigent circumstances. 'A statute does not trump the Constitution.' (Citation omitted.) A nonconsensual entry into a home 'is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is clearly present." (Payton v. New York, 445 U.S. at 589. . . . "It does not follow, however, that Government Code section 53074 and Pasadena Municipal Code section 6.08.110 are unconstitutional. Where a statute is susceptible of several interpretations, one of which raises serious constitutional problems, we will construe the statute, if possible, to avoid those problems. (Citations omitted.) Here, neither the Government Code nor the Pasadena Municipal Code addresses, much less authorizes, warrantless searches of a private residence without consent or exigent circumstances. . . "In this case, the Conways seek to impose liability on Sergeant Jurman based on his entry into their home in February 1993. As of that time, the Fourth Amendment, as construed by state and federal courts, clearly precluded a warrantless, nonconsensual entry into a home absent exigent circumstances. Indeed, this fundamental principle of Fourth Amendment jurisprudence was well established long before February 1993, and it remains the law today. As we have already explained, the record before us does not suggest that any exigent circumstances justified the entry into the Conway home to seize Toby. "Further, an officer's unreasonable ignorance that he has violated a clearly established right does not save his claim of qualified immunity. (Gilker v. Baker (9th Cir. 1978) 576 F.2d 245, 247; Coleman v. McHenry (E.D.Va. 1990) 735 F. Supp. 190, 193, affd. mem. (4th Cir. 1991) 945 F.2d 398. A public officer is presumed to know the law, provided it is clearly established. Thus, it is of no consequence that Humane Society officers may not have understood basic Fourth Amendment principles. . . . "[W]e cannot say as a matter of law that a reasonable officer would interpret those laws to dispense with the Fourth Amendment's warrant requirement. Arguably, a reasonable officer would read both the statute and the municipal code consistently with the Fourth Amendment, i.e., to require a warrant for a nonconsensual entry into a home absent exigent circumstances. . . . Accordingly, we conclude that the qualified immunity doctrine did not justify summary judgment in Sergeant Jurman's favor."
 
Conway v. Pasadena Humane Society, 45 Cal. App. 4th 163 (1996). Officer Lawing's purported reliance upon Hudson v. Hall, 231 F.3d 1289 (11th Cir. 2000) is misplaced. The officer in the Hudson case had probable cause to initiate a traffic stop of the plaintiff's vehicle because the plaintiff made a turn onto a busy public roadway without using a turn signal in violation of the law. The Hudson court found that the plain language of the statute included the plaintiff's conduct and there was no case law interpreting the statute to the contrary. Therefore, the Hudson case is not controlling. On the other hand, the Camara case specifically holds that a statute that grants a code enforcement officer "the right of entry" to conduct nonconsensual warrantless searches is unconstitutional in the absence of exigent circumstances. Nevertheless, Chapter 518 of the Jacksonville Municipal Code does not authorize nonconsensual warrantless searches. Officer Lawing's alleged misinterpretation of Section 518.123 to authorize unconstitutional entries upon private property is not reasonable nor is it the kind of extraordinary circumstance that would entitle him to qualified immunity. An ordinance requiring periodic inspections for code violations is qualified by the Fourth Amendment and cannot authorize inspection of private property without a warrant. Jones v. City of Longwood, Florida, 404 So.2d 1083 (5 D.C.A.Fla., 1981). A reasonably competent public official would know that a municipal ordinance cannot trump the Constitution. See Harlow v. Fitzgerald, 457 U.S. 800, 818-819 (1982).
 
 
B. A reasonably competent code enforcement officer would know the Fourth Amendment is not limited to criminal investigations.
 
 
Officer Lawing argues that it does not seem unreasonable "for a code inspector to believe that the rules governing the behavior of police officers investigating crimes could be different and more restrictive." App. Br. at 30. Officer Lawing argues, "This is especially reasonable where the 'reasonable code enforcer' is only considering the issuance of a mere 'warning." Id. The United States Supreme Court rejected these arguments in Camara: "It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior." 387 U.S. 523,
 
530. The Camara Court noted the following:
 
"Even the most law-abiding citizen has a very tangible interest in limiting the circumstances under which the sanctity of his home may be broken by official authority . . Like most regulatory laws, fire, health, and housing codes are enforced by criminal processes. In some cities, discovery of a violation by the inspector leads to a criminal complaint. Even in cities where discovery of a violation produces only an administrative compliance order, refusal to comply is a criminal offense, and the fact of compliance is verified by a second inspection, again without a warrant. Finally, as this case demonstrates, refusal to permit an inspection is itself a crime, punishable by fine or even by jail sentence."
 
Similarly, the Appellees were cited for violation of the junk vehicle ordinance, Section 518.203 of the Jacksonville Municipal Code. A violation is a Class C Offense punishable by a $250.00 fine and a 40 day jail sentence. See Section 518.204; Chapter 518, Addendum B. Justice Douglas emphatically rejected an attempt to trivialize the invasion of constitutional rights:
 
"It is said, however, that this fine is so small as to amount only to an assessment to cover the costs of the inspection. Yet if this fine can be imposed, the premises can be revisited without a warrant and repeated fines imposed. The truth is that the amount of the fine is not the measure of the right. The right is the guarantee against invasion of the home by officers without a warrant."
 
Frank v. Maryland, 359 U.S. 360, 375 (1959) (J. Douglas, dissenting).
 
Likewise, Officer Lawing's attempt to trivialize his unlawful conduct is without merit. Officer Lawing cannot thwart his duty to know the law governing his conduct and to respect basic constitutional rights simply because he is a code enforcement officer and not a police officer.
 
 
C. Officer Lawing's trespass upon Appellees' private property to inspect something that he could not see from a public vantage point was a search.
 
 
Section 518.203 of the Jacksonville Municipal Code prohibits persons from parking or storing "junk vehicles" on their private property. The full text of Section 518.203 is as follows:
 
Sec. 518.203. Junk vehicle parking or storage prohibited. No person in charge or control of any property within the city whether as owner, tenant, occupant, lessee or otherwise, shall allow any junk vehicle to remain on any private or public property within the city longer than seventy-two hours; and no person shall leave any such vehicle on any property within the city for a longer time than seventy-two hours; except that this article shall not apply to a vehicle on the premises of a business enterprise licensed and operated in a lawful place and manner, to repair vehicles with current license or those places where active restoration is taking place and both activities are taking place within a closed building.
 
(Ord. 98-496-E, § 2)
 
Parking or storing a "junk vehicle" on private property is a criminal offense. Section 518.204 and Addendum B to Chapter 518 of the Jacksonville provide the following prosecution penalties:
 
Section 518.204. Penalties. A person who violates or procures or acquiesces in a violation of the provisions of this Part, or a person who fails to comply with an order issued pursuant to this Part by the Chief or the Building Codes Adjustment Board, shall, upon conviction thereof, be guilty of a class C offense. A separate offense shall be deemed committed for each fifteen days that a violation of this chapter continues. The penalties for each type of offense shall be contained in Addendum "B" to this chapter. ADDENDUM B--PROSECUTION PENALTIES . . . Class C Offense: Not more than $250.00 fine or not more than 40 days in county detention facility. . . .
 
Since a violation of Section 518.203 is a criminal offense, the accused is entitled to certain rights guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. In particular, the government is required to prove all the essential elements of the offense charged beyond a reasonable doubt. See, e.g., In re Winship, 397 U.S. 358 (1970). Before a person can be convicted of parking a "junk vehicle" on private property, it is imperative to determine how the law defines this particular public nuisance.
 
Section 518.111 defines a "junk vehicle" as follows:
 
"Junk vehicle means an inoperable motor vehicle, travel trailer and other vehicles required by the state to be licensed, which also include buses, mopeds, motorcycles, trucks, tractors, go-carts, golf carts, campers and mobile homes (trailers) in which the condition is dismantled, partially dismantled, or from which the wheels, engines, transmission or any substantial part thereof have been removed, and which threatens or endangers public safety or welfare or creates a blighting influence upon the neighborhood where the vehicle rests."
 
The state does not require a vehicle to be licensed unless it is operated on the roads. Specifically, F.S. 320.02 (1) provides, "No registration is required for any motor vehicle which is not operated on the roads of this state during the registration period." Therefore, the portion of the junk vehicle definition that reads, "motor vehicle, travel trailer and other vehicles required by the state to be licensed," merely identifies the kinds of vehicles that may be classified as a junk vehicle. No vehicle can lawfully be classified as a junk vehicle unless it is the kind of vehicle that the state requires to be licensed if it is operated on the roads. If the status of a vehicle's current registration was an essential element in determining what is and what is not a junk vehicle, a person could evade the prohibition of parking a junk vehicle on private property simply by renewing the vehicle's license registration every year and displaying a current tag on the license plate.
 
Based upon the municipal ordinance definition, the government has the burden of proving that the vehicle in question is: 1) inoperable; 2) [of the kind] required by the state to licensed [if operated on the roads]; 3) in which the condition is dismantled, partially dismantled, or any substantial part thereof has been removed; and 4) which threatens or endangers public safety or creates a blighting influence upon the neighborhood. On June 15, 2001, Officer Lawing could stand on the public street and readily observe that the Appellees' vehicle was the kind of vehicle required by the state to be licensed if it was operated on the roads. However, there was no observable evidence that the vehicle was inoperable, in a dismantled condition, and a threat to public safety. Since it looked like any other ordinary vehicle, there was no observable evidence that the Appellees' vehicle was a blighting influence. There was absolutely no observable evidence that the Appellees' vehicle was a junk vehicle as defined by law. So, why did Officer Lawing desire to trespass upon Appellees' private property to examine the rear of the vehicle to determine if a current registration tag was displayed? The answer encompasses the City of Jacksonville's arbitrary and oppressive use of its police powers. Unbeknownst to the Appellees until recently, the City of Jacksonville promulgated another junk vehicle nuisance ordinance and disguised it as a land use ordinance under Chapter 656, Zoning Code. Specifically, Section 656.410 under the "miscellaneous" heading provides the following:
 
Sec. 656.410. Parking and storage of certain vehicles without current license plates; repairing of vehicles in certain districts. (a) A motor vehicle or trailer that is not operational or appears to be under repair may not be kept in an unenclosed space (including a carport) on a lot for more than ten days. (b) Motor vehicles, mobile homes or trailers of any type without current license plates (except vehicles customarily used in agricultural pursuits) shall not be parked or stored other than in completely enclosed buildings on residentially- or agriculturally-zoned property. (c) Major repairs shall not be made to a motor vehicle, mobile home or trailers of any type in a residential or agriculture district other than in a completely enclosed building and, if the repairs are made, parts shall be kept inside the enclosed buildings.
 
(Ord. 91-59-148, § 1) The City of Jacksonville surreptitiously uses the statutory language of Section 656.410 to supplant the definition of a "junk vehicle" as provided in Section 518.111. A careful review of the "Notice of Violation" that is uniformly used to notify the occupiers of private property that a vehicle on their property "is in violation of Chapter 518 of the Jacksonville Municipal Code" sufficiently demonstrates the City's treacherous practice. [See copy of "Notice of Violation" form in the Appendix to this Brief.] The practical effect of this City practice is to establish an unconstitutional conclusive presumption that a vehicle is a junk vehicle prohibited by Section 518.203 based upon the finding of a predicate fact, i.e., the vehicle is unregistered (no current tag displayed). [fn. 4] See Sandstrom v. Montana, 442 U.S. 510 (1979) (a conclusive presumption that establishes an essential element based upon the finding of a predicate fact violates the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt). [fn. 5] Under the plain view doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object--if its incriminating character is not immediately apparent—the plain view doctrine cannot justify its seizure. Id. [citing Arizona v. Hicks, 480 U.S. 321 (1987)]. "A dwelling-place search, no less than a dwelling-place seizure, requires probable cause, and there is no reason in theory or practicality why application of the 'plain view' doctrine would supplant that requirement." Arizona v. Hicks, 480 U.S. at 328. There is no categorical distinction between searches and seizures insofar as the degree of justification needed to establish the reasonableness of police action. Id. Therefore, even though Officer Lawing's conduct was a search rather than a seizure, we apply the same probable cause analysis. If Officer Lawing was lawfully in a position from which he could view the Appellees' vehicle, and if its incriminating character as a "junk vehicle" was immediately apparent, then it was within Officer Lawing's authority to issue a notice of violation. If that were the case, there would be no reason for Officer Lawing to trespass upon Appellees' private property to conduct an intrusive investigation in search of evidence of an ordinance code violation. Officer Lawing could simply post the notice on the Appellees' fence and go on his way. In Arizona v. Hicks, the Supreme Court stated:
 
"[T]he distinction between 'looking' at a suspicious object in plain view and 'moving' it even a few inches is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent - serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
 
Officer Lawing did not have probable cause to believe the vehicle in plain view was a "junk vehicle" defined by Section 518.111. Under the Chapter 518 definition, it makes no difference whether a current registration tag is displayed or not so long as the vehicle is the kind of vehicle that the state requires to be licensed if it is operated on the roads. However, Officer Lawing was enforcing the City's surreptitious practice of using the language of Section 656.410 to supplant the "junk vehicle" definition. He could not determine whether a current registration tag was displayed on the vehicle's license plate from any place where he had a right to be. There is a distinction between Officer Lawing looking at the Appellees' vehicle from a public vantage point and ignoring the no-trespassing sign, opening the gate to the Appellees' enclosed curtilage, and trespassing upon Appellees' private property. "[T]he right to exclude others is one of the most essential sticks in the bundle of rights that are commonly characterized as property." Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987). Officer Lawing's trespass upon Appellees' private property for the purpose of conducting a search of the Appellees' vehicle because its "incriminating character" was not immediately apparent from a public vantage point was a substantial interference with the Appellees' possessory interests in their property. Courts have not hesitated to find a search when public officers trespass upon private property in order to secure a view that is not otherwise available from a public place. See United States v. Davis, 423 F.2d 974 (5th Cir. 1970). The United States Supreme Court has stated:
 
"We recognized in Payton v. New York, 445 U.S. 573 (1980), the well-settled rule that objects such as weapons or contraband found in a public place may be seized by the police without a warrant. The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity. A different situation is presented, however, when the property in open view is 'situated on private premises to which access is not otherwise available for the seizing officer.' Id., at 587, quoting G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977). As these cases indicate, 'plain view' provides grounds for seizure of an item when an officer's access to an object has some prior justification under the Fourth Amendment. 'Plain view' is perhaps better understood, therefore, not as an independent 'exception' to the warrant clause, but simply as an extension of whatever the prior justification for an officer's 'access to an object' may be." Texas v. Brown, 460 U.S. 730, 738-739 (1980).
 
Thus, Officer Lawing's purported reliance on cases wherein an officer merely looks at an automobile parked in a public place is entirely misplaced when assessing a trespass situation. Officer Lawing had no probable cause to believe the Appellees' vehicle was a "junk vehicle" as defined by Section 518.111. Officer Lawing has not stated any justification nor any exception to the warrant requirement for his trespass into the Appellees' fenced and posted curtilage. Officer Lawing entered the Appellees' private property for the purpose of searching for an ordinance code violation. A search is a search, even if it discloses no more than the bottom of a turntable or the information on a vehicle's license plate. Officer Lawing's purported reliance on Wren v. Towe, 130 F.3d 1154 (5th Cir. 1997) is also wholly misplaced. Officer Lawing's observation that the vehicle's registration tag was expired after he unlawfully trespassed upon Appellees' private property does not serve to vindicate the unconstitutional entry. The ends do not justify the means. No court has ever ruled that a nonconsensual warrantless search of private property, absent exigent circumstances, is reasonable so long as the unconstitutional search uncovers some evidence of an offense. Officer Lawing's conduct was a search and he cites no authority on point that holds otherwise.
 
 
D. A reasonably competent code enforcement officer would know the Fourth Amendment applies to physical intrusions into the curtilage of a resident's home.
 
 
Although a trespass upon an open field does not implicate the Fourth Amendment, the Appellees' curtilage is not an open field. See Oliver v. United States, 466 U.S. 170 (1984). "[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home." Id. at 178.
 
The Oliver Court explained:
 
"The historical underpinnings of the open fields doctrine also demonstrate that the doctrine is consistent with respect for 'reasonable expectations of privacy.' As Justice Holmes, writing for the Court, observed in Hester, 265 U.S., at 59 , the common law distinguished 'open fields' from the 'curtilage,' the land immediately surrounding and associated with the home. See 4 W. Blackstone, Commentaries *225. The distinction implies that only the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home. At common law, the curtilage is the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life,' and therefore has been considered part of the home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain
private. Conversely, the common law implies, as we reaffirm today, that no expectation of privacy legitimately attaches to open fields."
 
Oliver, 466 U.S. at 180 (internal citations omitted) (emphasis added). Upon discussing plain view observations of an individual's curtilage, the United States Supreme Court held that the Fourth Amendment was not violated by the naked-eye aerial observation of respondent's backyard. California v. Ciraolo, 476 U.S. 207 (1986). Specifically, the Court stated:
 
"That the area is within the curtilage does not itself bar all police observation. The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer's observations from a public vantage point where he has a right to be and which renders the activities clearly visible. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. "The observations by Officers Shutz and Rodriguez in this case took place within public navigable airspace in a physically nonintrusive manner; from this point they were able to observe plants readily discernible to the naked eye as marijuana. That the observation from aircraft was directed at identifying the plants and the officers were trained to recognize marijuana is irrelevant. Such observation is precisely what a judicial officer needs to provide a basis for a warrant."
 
Ciraolo, 476 U.S. at 213 (internal citations omitted)(emphasis added). Given zoning ordinances that dictate the maximum height of people's fences and permissible aerial flights over private property, it is impossible for any person to prevent government surveillance and observations of a person's constitutionally protected curtilage. It is impossible to build a privacy fence high enough to keep out prying eyes. Nevertheless, observations of the curtilage to people's homes may only be used to establish probable cause for a public officer to obtain a warrant. Absent exigent circumstances, a person's home and curtilage are still protected from nonconsensual warrantless physical intrusions. The Supreme Court has made it clear that the Fourth Amendment protects people's interests in their property as well as their interests in privacy and liberty. Soldal v. Cook County, 506 U.S. 56 (1992). Warrantless entries into a constitutionally protected area have always been considered to be a significant intrusion. A Florida court recently discussed this clearly established principle:
 
"[T]he Department first argues that section 81.031(15)(a), Florida Statutes (2002), allowing the Department 'to enter into or upon any place' to inspect for citrus canker does not violate appellees' Fourth Amendment rights because the intrusion into the constitutionally protected areas is so de minimus as to be reasonable. Camara, however, disposed of this argument when it held that administrative searches of constitutionally protected areas are 'significant intrusions' of the type protected by the Fourth Amendment. 387 U.S. at 534. True, the inspection in Camara intruded into the home itself. However, where the inspection is in the curtilage, that area is given the same constitutional protection as one within the walls of the home. See U.S. v. Dunn, supra n.2."
 
Florida Department of Agriculture and Consumer Services v. Haire, 2003 FL 188 (FLCA, 2003). Officer Lawing's reliance on Sarantopoulos v. State, 629 S.2d 121 (Fla. 1994) is misplaced. The police officers in Sarantopoulos did not use their observations to justify a warrantless intrusion onto private property. The observations made by police officers by peeking over a privacy fence established the probable cause necessary for an impartial judicial officer to issue a warrant. Although plain view observations assist a judicial officer to determine if probable cause exists for the issuance of a warrant, it is doubtful that Lawing could persuade a judicial officer that his observations of a row of tomatoes planted along a fence line with a vehicle parked nearby constitutes probable cause to believe a municipal ordinance has been violated. Officer Lawing's trespass into the Appellees' fenced and posted curtilage to search for an ordinance code violation was a significant and unconstitutional intrusion and no reasonably competent officer would believe otherwise.
 
 
E. Officer Lawing's allegation that the district court failed to hold plaintiffs to the burden of citing a materially similar case is not an appealable issue.
 
 
Officer Lawing's Appellate Brief states the following: "[T]he plaintiffs had the burden of pointing to a previously existing and controlling case establishing a constitutional violation on materially similar facts." App. Br. at 17. The Appellees understand their burden and prevailed in the district court. The Appellees managed to prevail by attempting to find the cases that Officer Lawing cited in his brief in support of his motion for summary judgment, reading those cases, and discrediting the arguments in their responsive brief. It is troublesome that a represented party's counsel would fail to disclose a landmark Supreme Court case that is directly on point and adverse to his client for the apparent purpose of taking advantage of pro se plaintiffs who are untrained in the law and the Eleventh Circuit's rule that shifts the burden onto the plaintiff to prove the nonexistence of an affirmative defense. Appellate review of qualified immunity dispositions must be conducted in light of all relevant precedents, not simply those cited to or discovered by the district court. Elder v. Holloway, 510 U.S. 510 (1994). Regardless of a court's duty to apply all relevant law, cited or not, the Supreme Court admonished that a lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client. Id. at n.3. Nevertheless, Officer Lawing's Appellant's Brief fails to disclose and discuss the vast controlling body of law initially developed by the United States Supreme Court approximately four decades ago in the landmark case of Camara v. Municipal Court, 387 U.S. 523 (1967). In a taunting manner, the following is stated in the Appellant's Brief:
 
"Plaintiffs have yet to cite a case on point clearly establishing that a code enforcement officer under this set of facts should not be entitled to qualified immunity. Their failure to do so is unsurprising; there is not one." App. Br. at 30.
 
However, there is a landmark Supreme Court case on point and its existence should not be a surprise to anyone. Appellees respectfully submit that Camara v. Municipal Court, 387 U.S. 523 (1967), clearly establishes that a code enforcement officer may not lawfully enter upon Appellees private property without the Appellees' consent and without a warrant in the absence of exigent circumstances. Inasmuch as the plaintiffs prevailed at the district court level and appellate review of qualified immunity dispositions must be conducted in light of all relevant precedents, not simply those cited to or discovered by the district court, Officer Lawing has raised a non-appealable issue.
 
 
F. Neither an officer's negligence excuse nor alleged fears of personal financial ruin entitle an officer to qualified immunity.
 
 
Qualified immunity does not protect a public official from the consequences of his own incompetence--the inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal. See Malley v. Briggs, 475 U.S. 335, 345 (1986) Officer Lawing's arguments concerning fears of personal financial ruin are without merit because an action for damages may offer the only realistic avenue for vindication of constitutional guarantees. See Harlow, 457 U.S. at 814. Additionally, the City of Jacksonville has provided Officer Lawing with legal representation for his defense and has indemnified Officer Lawing from any personal liability:
 
Section 518.126. Liability.
 
An officer or employee of the city or a member of the city's Code Enforcement Board, any of whom is charged with the enforcement of this chapter in the discharge of his duties, shall not thereby render himself personally liable and he/she is hereby relieved from all personal liability for damage that may accrue to persons or property as a result of an act required or in the discharge of his duties. A suit brought against an officer, employee or member permitted because of this chapter shall be defended by the General Counsel until the final termination of the proceedings.
 
Neither incompetence nor fears of personal liability constitute extraordinary circumstances that prove Officer Lawing should not have known of the relevant legal standard.
 
 
G. Entitlement to qualified immunity is determined by an impartial application of law to the facts
 
 
The only issue before this Court is whether Officer Lawing is entitled to qualified immunity as a matter of law through a neutral application of the two-prong test established by the United States Supreme Court. Officer Lawing's argument that other cases implicate conduct far more reprehensible than his own is of no consequence. The required test does not allow for moral judgments based upon a sliding scale of reprehensibility.
 
 
CONCLUSION
 
 
Officer Lawing violated the Appellees' constitutional rights. Fourth Amendment jurisprudence was clearly established placing Officer Lawing on notice that his conduct was unlawful. Officer Lawing has not demonstrated any extraordinary circumstances that prove he should not have known the legal standard concerning nonconsensual warrantless entries upon and searches of a resident's curtilage by code enforcement officers. Officer Lawing's claim of qualified immunity must fail as a matter of law.
 
 
FOOTNOTES
 
 
1. Upon information and belief, the lady who accompanied Officer Lawing was Officer Lawing's superior from the City of Jacksonville Code Enforcement Branch. 2. Section 518.206, Jacksonville Property Safety and Maintenance Code. 3. Section 518.204, Jacksonville Property Safety and Maintenance Code. 4. It is doubtful that a municipality can require a vehicle to have a current license in order to park it on private property when the state does not require a vehicle to have a current license unless it is operated on the roads. See Title XXIII Motor Vehicles, F.S. 316.007--Provisions uniform throughout state.--The provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized. 5. The City's surreptitious practice masks a criminal offense as civil infraction, deprives accused persons of proper notice of the charge against them, and otherwise deprives all persons accused of violating Section 518.203 of the full panoply of their Constitutional rights. It is so treacherous and offensive as to shock the conscience.
 
 
CERTIFICATE OF COMPLIANCE
 

I certify that this brief complies with the type-volume limitation set forth in FRAP 32(a)(7)(B). This brief contains 9,127 words.

 

CERTIFICATE OF SERVICE

 

I HEREBY CERTIFY that true and correct copies of Appellee’s Brief have been furnished to Jon Phillips, Appellant’s Counsel, 417 West Duval Street, Suite 480, Jacksonville, Florida 32202 and to Lee S. Carlin, Assistant GeneralCounsel, 417 West Duval Street, Suite 480, Jacksonville, Florida 32202 by Hand Delivery this _____ day of May, 2003.

_____________________________ __________________________________

Robert Marlett, Appellee, pro se Gloria Omerkov, Appellee, pro se

2180 3rd street

Jacksonville, FL 32218

904-757-2150

 

Appendix

 

Florida Attorney General Advisory Legal Opinion Number: AGO 82-12

Date: March 2, 1982

Subject: Authority to issue citations; animal control

--------------------------------------------------------------------------

Mr. Robert C. Nettleton

City Attorney, Haines City

Post Office Box 277

16 South Seventh Street

Haines City, Florida 33844

 

Dear Mr. Nettleton:

 

This is in response to your request for an opinion on substantially the following question:

 

DOES A MUNICIPALITY HAVE HOME RULE POWER TO GRANT AN ANIMAL CONTROL OFFICER OR HIS ASSISTANTS THE AUTHORITY TO SERVE CITATIONS OR CRIMINAL PROCESS OR PROCESS IN THE NATURE OF CRIMINAL PROCESS, AND AUTHORIZE THE ENTRY ONTO PRIVATE PROPERTY FOR THE PURPOSE OF CAPTURING DOGS FOR IMPOUNDMENT OR MAKE AFFIDAVITS NECESSARY TO AUTHORIZE ARRESTS AND SEARCHES?

 

As noted in AGO 081-38 municipalities derive no power from Art. VIII, s 2(b), State Const., concerning such service for or issuance of process by the state courts. That opinion concludes that a municipality has no home rule power to grant the members of its fire department or its fire officials the authority to serve summonses or criminal process or process in the nature of criminal process, make arrest, carry firearms, and make searches and seizures or make affidavits necessary to authorize arrests and searches and seizures, as a sheriff or his deputies may do. Additionally, it was noted that, while a municipality possesses the power to create appointive offices and prescribe the powers thereof pursuant to municipal ordinance, under the existing common law, constitutional, and statutory scheme of state and local government in this state, a municipality may not by ordinance make its firemen or fire officials 'peace officers' or vest in them the power to keep the public peace. In light of the rule set forth and the conclusions reached in AGO 081-38, I must conclude that a municipality has no home rule power to grant an animal control officer or his assistants the authority to serve citations or criminal process or process in the nature of criminal process, or to authorize the entry onto private property without the consent of the owner or occupant thereof for the purpose of capturing dogs for impoundment, or to make affidavits necessary to authorize arrests and searches. See also AGO's 081-39; 079-83; Cf. 078-132. Compare AGO 078-102 (which concluded that animal control agents appointed by a county under s 828.03, F.S., have no powers to take custody of or arrest the owner of a neglected or cruelly treated animal, to issue notices to appear, or to serve notices in the nature of civil process upon such owner in connection with proceedings under s 828.073, F.S.). You also ask whether an animal control officer 'empowered and employed' by Polk County would have the above authority within the municipal limits of Haines City if the municipality desired to be subject to the provisions of Polk County Ordinance No. 77-8, Section 1, which allows municipalities within the county to come under this ordinance. Your letter states your concern, in light of AGO 081-38, that adoption of the above-referenced county ordinance (or a request by Haines City to Polk County to enforce its ordinance within the city) may be improper. Chapter 59-1759, Laws of Florida, authorized the creation of county pounds in Polk County, and the appointment of an impounding officer with authority to 'pick up, catch or procure any animal roaming at large.' Nothing in Ch. 59-1759 suggests that the impounding officer or animal control officer is vested with the authority to serve citations or process, or to enter onto private property without the consent of the owner or occupant to capture dogs. Polk County Ordinance No. 77-8 sought to amend (FN1) and supplement the powers granted by Ch. 59-1759 by requiring an annual rabies inoculation of dogs and cats and by instituting a leash requirement for dogs off the property of the owner. Ordinance No. 77-8 also authorized the impounding officer and his assistants to serve citations and to enter onto private property to capture dogs. However, this latter authority is qualified by the Fourth Amendment of the U.S. Constitution and Article I, Section 12 of the Florida Constitution. Cf. AGO 082-7, dated February 23, 1982 (concluding, inter alia, that administrative searches or inspections conducted outside the judicial process without consent, and without prior approval by a judge or magistrate, [as evidenced by an administrative search warrant] are not reasonable, unless it can be shown that the administrative search or inspection falls within one of the well-delineated exceptions to this rule, and that statutes, ordinances and rules purporting to authorize administrative searches without a warrant under regulatory statutes have been held violative of the Fourth Amendment, and citing e.g., Camara v. Municipal Court, 387 U.S. 523 [1967], and Jones v. City of Longwood, 404 So.2d 1083 [5 D.C.A. Fla., 1981]).

In light of AGO 081-38, and as noted above, it would appear that Ordinance No. 77-8 could not vest the impounding officer or the animal control officer with the powers of a law enforcement officer. However, I must advise you that this office cannot pass upon the validity of the county ordinance or upon the legality of the county animal control officer's actions under the county ordinance. These are presumptively valid until the courts hold otherwise. In summary, unless and until legislatively and judicially determined otherwise, it is my opinion that municipal home rule power does not include the power to grant an animal control officer or his assistants the authority to serve citations or criminal process or process in the nature of criminal process, or authorize the entry onto private property without the consent of the owner or occupant thereof for the purpose of capturing dogs for impoundment or make affidavits necessary to authorize arrests and searches. Sincerely, Jim Smith Attorney General Prepared By: Anne Curtis Terry Assistant Attorney General FN1 It appears that Ch. 59-1759 relates only to the unincorporated area of Polk County and thus Article VIII, Section 6(d), Fla. Const., allows amendment of this special law by county ordinance. Compare Spaulding v. St. Johns County, 384 So.2d 1276 (Fla. 1980); Davis v. Gronemeyer, 251 So.2d 1 (Fla. 1971). This special law relates to municipalities in Polk County only to the extent that they may elect to come under its provisions. However, our office cannot pass upon the constitutional validity of the county ordinance under Article VIII, Section 6(d); it is presumptively valid until the courts hold otherwise.

Florida Attorney General

Advisory Legal Opinion

Number: AGO 84-32

Date: April 2, 1984

Subject: Inspectors entering private property --------------------------------------------------------------------------

 

Mr. Maynard A. Gross

Town Attorney

Town of Medley

Suite 200, Dadeland West

10651 North Kendall Drive

Miami, Florida 33176

 

Dear Mr. Gross:

 

This is in response to your request for an Attorney General's Opinion on substantially the following question:

 

WHETHER A MUNICIPAL CODE INSPECTOR IS AUTHORIZED BY LAW TO ENTER ONTO PRIVATE PREMISES TO CONDUCT INSPECTIONS OR ASSURE COMPLIANCE WITH LOCAL TECHNICAL CODES WITHOUT THE CONSENT OF THE OWNER OR OCCUPANT OR HAVING FIRST PROCURED A WARRANT?

 

This request has been submitted on behalf of the Mayor and Town Council of the Town of Medley. According to your letter the Town of Medley enacted an ordinance in 1981 pursuant to former Ch. 166, F.S. (now Ch. 162, F.S.) which created a code enforcement board. Concern has been expressed recently regarding the authority of a municipal code inspector to inspect private premises to which the officer was denied access or, once on such premises, the officer was requested to leave. Your inquiry generally refers to "premises" without distinction between business premises and private residential premises.

The intent of the "Local Government Code Enforcement Boards Act," ss 162.01-162.13, F.S., is to protect and improve the health, safety and welfare of county or municipal citizens by authorizing the creation of administrative boards to provide an equitable, expeditious, effective and inexpensive method of enforcing county or municipal technical codes.

Section 162.02, F.S. The local code inspectors are the authorized agents or employees of the county or municipality responsible for assuring code compliance (s 162.04[2], F.S.), whose duty it is to initiate enforcement proceedings of the various codes (s 162.06, F.S.). No member of the code enforcement board has the power to initiate such enforcement proceedings.

Section 162.06(1), F.S. Such assurance of code compliance and enforcement proceedings apply or pertain to any building or premises, commercial or residential, subject to the technical codes described in s 162.02, F.S.

The Fourth Amendment to the United States Constitution, made applicable to the states through the due process clause of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, reh. den., 368 U.S. 871 (1961), guarantees to all persons the right of privacy free from unreasonable state intrusion. In addition, s 12, Art. I, State Const., provides protection from unreasonable searches and seizures:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. ...

Administrative searches or inspections such as those under consideration in the instant inquiry, which are conducted outside the judicial process without consent and without prior approval (as evidenced by an administrative search warrant) are not reasonable, unless a showing can be made that the administrative search or inspection falls within one of the well-established exceptions to this rule. See, e.g., See v. City of Seattle, 387 U.S. 541 (1967); United States v. Sokolow, 450 F.2d 324 (5th Cir.1971); Benton v. State, 329 So.2d 385 (1 D.C.A.Fla., 1976); Parsons v. State, 334 So.2d 308 (1 D.C.A.Fla., 1976); and AGO 82-7. CF., Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970), and Michigan v. Tyler, 436 U.S. 499 (1978).

Both business or commercial premises and private residences are afforded protection from unreasonable searches by s 12, Art. I, State Const., and the Fourth Amendment to the U.S. Constitution. See, See v. City of Seattle, supra, in which the U.S. Supreme Court held that administrative inspections of commercial structures as well as private residences are forbidden by the Fourth Amendment when conducted without a warrant; and Jones v. City of Longwood, Florida, 404 So.2d 1083 (5 D.C.A.Fla., 1981), in which the court, in a wrongful death action, stated that an ordinance requiring the building inspector and fire chief to periodically inspect all buildings and structures within the city was qualified by the Fourth Amendment and could not authorize inspection of private property without a warrant.

A limited exception to the "administrative warrant" requirement has been established by the United States Supreme Court, holding that, even in the absence of consent, an administrative inspection may be made without a warrant if the business searched is one in which there is a legitimate public interest in close regulation and if the search is conducted under the authority of a statute meeting certain specificity requirements. United States v. Biswell, 406 U.S. 311 (1972). See also, Colonnade Catering Corp. v. United States, supra; Donovan v. Dewey, 452 U.S. 594 (1981). Compare, e.g., ss 455.243, 465.017, F.S.; Olson v. State, 287 So.2d 313 (Fla.1973). No such statutory authority for warrantless searches appears to exist with regard to local code enforcement boards or code inspectors. Therefore, the administrative searches or inspections under consideration may not be constitutionally conducted without the consent of the owner or the operator or occupant of the affected premises or without a duly issued search or administrative inspection warrant.

The Florida Statutes, however, now make provisions for the procurement and issuance of "inspection warrant(s)" which authorize a state or local official to conduct an inspection of any building, place or structure, other than an owner-occupied family residence, as authorized or required by state or local law or rule relating to municipal or county building, fire, safety, plumbing, electrical, health, minimum housing, or zoning standards. See, ss 933.20-933.30, F.S. Section 933.21, F.S., specifically provides that "[o]wner-occupied family residences are exempt from the provisions of (ss 933.20-933.30, F.S.)." As related to municipal or county building, fire, safety, plumbing, electrical, health, minimum housing or zoning standards, all other places, dwellings, structures or premises are subject to the provisions of ss 933.20-933.30, F.S.

Therefore, it is my opinion that a municipal code inspector is without authority to enter onto any private, commercial or residential property to assure compliance with or to enforce the various technical codes of the municipality or to conduct any administrative inspections or searches without the consent of the owner or the operator or occupant of such premises or without a duly issued search or administrative inspection warrant. The procurement and issuance of administrative inspection warrants is governed by the provisions of ss 933.20-933.30, F.S. However, owner-occupied family residences are exempt from the provisions of ss 933.20-933.30, F.S., and as to those residences a search warrant or the prior consent and approval of the owner is required.

 

Sincerely,

 

Jim Smith

Attorney General

Prepared by: Gerry Hammond

Assistant Attorney General

 

Florida Attorney General

Advisory Legal Opinion

Number: AGO 2002-27

Date: April 4, 2002

Subject: Code enforcement, search of private property

--------------------------------------------------------------------------------

Mr. Mark F. Carpanini

Polk County Attorney

Drawer AT01

Post Office Box 9005

Bartow, Florida 33831-9005

RE: LOCAL GOVERNMENT CODE ENFORCEMENT BOARDS–COUNTIES– ORDINANCES--INSPECTIONS–WARRANTS–authority of code enforcement officers to search private property. U.S. Const. amend. IV; Fla. Const. Art. 12, s. 12; Ch. 162, Fla. Stat.

Dear Mr. Carpanini:

You have asked for my opinion on substantially the following question:

Is a local government code inspector authorized by law to enter onto private premises to conduct inspections or assure compliance with local technical codes without the consent of the owner or occupant, or having first procured a warrant?

In sum:

A local government code inspector is not authorized to enter onto any private, commercial or residential property to assure compliance with or to enforce the various technical codes or to conduct any administrative inspections or searches without the consent of the owner or the operator or occupant of such premises, or without a duly issued search or administrative inspection warrant.

Part I of Chapter 162, Florida Statutes, was adopted to

"promote, protect, and improve the health, safety, and welfare of the citizens of the counties and municipalities of this state by authorizing the creation of administrative boards with authority to impose administrative fines and other noncriminal penalties to provide an equitable, expeditious, effective, and inexpensive method of enforcing any codes and ordinances in force in counties and municipalities, where a pending or repeated violation continues to exist."[1]

Local code inspectors are the authorized agents or employees of the county or municipality responsible for assuring code compliance,[2] whose duty it is to initiate enforcement proceedings of the various codes.[3] No member of the code enforcement board has the power to initiate enforcement proceedings.[4] Code compliance and enforcement proceedings may be initiated against any building or premises, commercial or residential, subject to the technical codes referred to in section 162.02, Florida Statutes.

The Fourth Amendment to the United States Constitution, made applicable to the states through the due process clause of the Fourteenth Amendment,[5] guarantees to all persons the right to be secure from unreasonable governmental intrusion. Further, the Florida Constitution provides protection from unreasonable searches and seizures in Article I, section 12:

"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution."[6]

Administrative searches or inspections conducted outside the judicial process without consent and without prior approval (as evidenced by an administrative search warrant) are not reasonable, unless it can be shown that the administrative search or inspection falls within one of the well-established exceptions to this rule.[7] The protection from unreasonable searches provided by section 12, Article I, Florida Constitution, and the Fourth Amendment to the U.S. Constitution, are extended to both business or commercial premises and to private residences.[8]

The United States Supreme Court has established a limited exception to the administrative warrant requirement. This line of cases holds that, even in the absence of consent, an administrative inspection may be made without a warrant if the business searched is one in which there is a legitimate public interest in close regulation and if the search is conducted under the authority of a statute meeting certain specificity requirements.[9] Among those enterprises for which the courts have recognized such an exception are those in which government regulation is pervasive such as liquor sales, firearms sales, and sales of secondhand goods.[10] The Florida Legislature has made provision for the issuance of limited administrative search warrants in sections 933.20- 933.30, Florida Statutes. These written orders, designated "inspection warrant(s)," must be signed by a judge or committing magistrate and directed to a state or local official to conduct an inspection of any building, place, or structure as authorized or required by state or local law or rule relating to municipal or county building, fire, safety, environmental, animal control, land use, plumbing, electrical, health, minimum housing, or zoning standards.[11] Owner-occupied family residences are specifically exempted from the provisions of this act.[12] In sum, it is my opinion that a municipal code inspector is without authority to enter onto any private, commercial, or residential property to assure compliance with or to enforce the various technical codes of the county or to conduct any administrative inspections or searches without the consent of the owner or the operator or occupant of such premises, or without a duly issued search or administrative inspection warrant. The procurement and issuance of administrative inspection warrants is governed by the provisions of sections 933.20-933.30, Florida Statutes. However, owner-occupied family residences are exempt from the provisions of sections 933.20-933.30, and a search warrant or prior consent and approval of the owner is required for a search of these premises.

 

Sincerely,

 

Robert A. Butterworth

Attorney General

RAB/tgh

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[1] Section 162.02, Fla. Stat.

[2] Section 162.04(2), Fla. Stat.

[3] Section 162.06(1), Fla. Stat.

[4] Id.

[5] Mapp v. Ohio, 367 U.S. 643, reh. den., 368 U.S. 871 (1961).

[6] Article I, s. 12, Fla. Const., was amended in 1982 by H.J.R. No. 31-H, adopted by the electorate at the November 1982 general election, which provides that the right to be free from unreasonable searches and seizures shall be construed in conformity with the 4th Amendment to the United States Constitution and provides that illegally seized articles or information are inadmissible if decisions of the United States Supreme court make such evidence inadmissible.

[7] See, e.g., See v. City of Seattle, 387 U.S. 541 (1967); Peterman v. Coleman, 764 F.2d 1416 (11th Cir.,[Fla.] 1985); Jones v. City of Longwood, 404 So. 2d 1083 (Fla. 5th DCA 1981), pet. for rev. den., 412 So. 2d 467 (Fla. 1982); Ops. Att'y Gen. Fla. 84-32 (1984), 82-07 (1982). In addition, exigent circumstances may exist which justify a warrantless entry onto the premises. As an example, a burning building creates an exigency which justifies a warrantless entry by fire officials to fight the fire. See, Michigan v. Clifford, 464 U.S. 287 (1984). And see, J.A.R. v. State, 689 So. 2d 1242 at 1244 (Fla. 2d DCA 1997), "[t]he danger created by students carrying guns, knives, and other weapons is now apparently sufficient to warrant random suspicionless administrative searches in some schools in this state."

[8] See, See v. City of Seattle, supra n. 7, in which the U.S. Supreme Court held that administrative inspections of commercial structures as well as private residences are forbidden by the Fourth Amendment when conducted without a warrant; and Jones v. City of Longwood, Florida, supra n. 7, in which the court, in a wrongful death action, stated that an ordinance requiring the building inspector and fire chief to periodically inspect all buildings and structures within the city was qualified by the Fourth Amendment and could not authorize inspections of private property without a warrant.

[9] United States v. Biswell, 406 U.S. 311 (1972). See also, Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970); Donovan v. Dewey, 452 U.S. 594 (1981).

[10] See, Colonnade Catering Corp., v. United States, id.,(sale of alcoholic beverages); United States v. Biswell, id.,(sale of firearms); Peterman v. Coleman, 764 F.2d 1416 (C.A. 11 [Fla.] 1985) (pawnbrokers).

[11] See, ss. 933.20-933.30, Fla. Stat.

[12] Section 933.21, Fla. Stat.

 

 

Judge's Summary URL:  http://www.wilderness-cry.com/4th-amend/workin-it.pdf (13 pages)

 

Additional researched, recommended reading:

 

 

You CAN Fight City Hall and Win! Keep Your Rights!

 

January 19, 2004

 

Press Release - For Immediate Release

 

KEEP YOUR RIGHTS - READ BELOW

Property rights are among the most basic foundations of liberty… here’s a way to protect them.

If your Fourth Amendment rights are violated and you do not fight back, you deserve the tyranny you support. You can be taught what you need to know to protect your rights. Join the army of Americans preparing to stand in the federal courts and preserve their property rights by enforcing the law on government officials who believe they don't need to abide by it.

 

This Announcement is to all government employees, federal, state and local, whose jobs or duties take you outside the office and into the public sector, who might have occasion to visit private property, and the supervisors and department heads whose subordinates meet the above description, and municipalities who employ persons who meet the above description.

 

Warning! You've been targeted for a frenzy of Federal civil lawsuits!

 

The case that started this frenzy, Marlett v. City of Jacksonville, et al, has provided encouragement to people who believe that government officials trespassing on private property amounts to a violation of constitutional rights. The pleadings from my court case have been widely publicized. There have been reports of dozens of lawsuits that have already been filed, and possibly over 100 being prepared for filing in the coming days.

 

For those of you who live in homes, mobile homes, or any other structures with an associated outside area. (This would not apply to those who live in apartment buildings, motels, etc. that have no "yard") this adherence to your Constitutional rights is also applicable. Any government agent of any sort and from any department, agency, or level of government, can be held accountable to the law if they invade the curtilage of your home. Curtilage is defined as the area around your home that is directly associated with the home itself… in other words, your yard.

 

Government Agents: Here’s what you need to know to keep from being sued:

 

1) The yard or "curtilage" as the law calls it, is protected by the Fourth Amendment, and cannot be lawfully entered under most circumstances without a warrant. (Unless there is a closed gate and no trespassing signs, you can go to the front door to speak to the occupant, but must take a direct route without deviating from it, and must leave if asked to do so.)

 

2) If people under your supervision violate rule 1, you might be held liable under a "Failure to properly train and supervise" standard. Municipal governments are also being targeted for liability under this standard.

 

3) If you aren't sure whether an area is protected curtilage, get a warrant. If you can't get a warrant… Keep off the grass.

 

This is the time to act. If you have been victimized, know someone who has, or need information on the above matters, contact: Freedom’s Cry Foundation.

 

For further information contact:

 

Freedom’s Cry Foundation

"Keep off the Grass Rebellion"

Founded by Rob Marlett

904-757-2150

litigation@freedomscry.us

http://www.FreedomsCry.us

 

You can find complete documentation for Rob's case at: http://www.DeadBangGuns.com/ROB/ and

http://www.Wilderness-Cry.com/4th-amend/

 

http://www.wilderness-cry.com/4th-amend/6-PressRelease-01-19-04.pdf

 

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Marlett v. City of Jacksonville

http://www.wilderness-cry.com/4th-amend/1-SecondAmendedComplaintForDamages.pdf (32 pages - 38 references to Steve Lawing or Officer Lawing)

 

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Marlett v. Jacksonville Document Index

All documents require Adobe Acrobat Reader (free download)

Documents From the early stages are not available in electronic format

Summary Judgment Stage (District Court)

The "Appeals" Stage

Just for Fun Stage

Most Recent Filings

http://www.wilderness-cry.com/4th-amend/

 

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http://www.freedomscry.us/flyers/flyer-law.pdf

 

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Summary of Argument

 

http://www.wilderness-cry.com/4th-amend/subtle-stabs.pdf (5 pages and well worth reading)

 

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Legal Research Links

 

Best collection of Research sites I've found on the Internet
Project Grasp
http://www.brightok.net/~hbk  

Court files, briefs, orders, opinions, etc at per page prices
Pacer
http://pacer.psc.uscourts.gov/  

Free access to some Court Opinions and Statutory laws
FindLaw Cases and Codes
http://www.findlaw.com/casecode  

The US Supreme Court Rules
http://www.supremecourtus.gov/ctrules/rulesofthecourt.pdf  

1st circuit rules
http://www.ca1.uscourts.gov/rules.htm  

2nd Circuit
www.ca2.uscourts.gov/main.htm  

"all you want to know about the 2nd Circuit"
www.ca2.uscourts.gov/COAInfo.htm  

FRAP and 2nd Circuit Rules (Adobe Acrobat file)
http://www.ca2.uscourts.gov/Docs/Rules/FRAP_LR.pdf  

3rd Circuit
www.ca3.uscourts.gov/  

3rd Circuit Rules and procedures (pages of links)
http://www.ca3.uscourts.gov/Rules%20and%20Procedures.htm  

Fourth Circuit (Richmond, VA and Baltimore, MD)
http://www.ca4.uscourts.gov/  

Fourth Circuit Rules and procedures (page of links to...)
http://www.ca4.uscourts.gov/ruleproc.htm  

FRAP and 4th Circuit Rules and IOPs (Adobe Acrobat file)
http://www.ca4.uscourts.gov/pdf/rules.pdf  

Fifth Circuit (LA, MS and TX)
www.ca5.uscourts.gov/  

FRAP and Fifth Circuit Rules
http://www.ca5.uscourts.gov/clerk/frap/frap_frame.htm

Sixth Circuit (KY, MI, OH, TN)
www.ca6.uscourts.gov/  

FRAP and Sixth Circuit Rules and IOPs
http://pacer.ca6.uscourts.gov/rules/frame.htm  

Seventh Circuit (in Chicago, IL)
www.ca7.uscourts.gov  

Seventh Circuit Rules page (page of links)
http://www.ca7.uscourts.gov/rulesmain.htm  

FRAP and 7th Circuit Rules
http://www.ca7.uscourts.gov/Rules/rules.htm  

7th Cir. IOPs
http://www.ca7.uscourts.gov/Rules/rules.htm#opproc  

Eighth Circuit (AR, NE, ND, SD, MO, MN, IA)
http://www.ca8.uscourts.gov/  

Eighth Circuit FRAP (Adobe Acrobat file)
http://www.ca8.uscourts.gov/newrules/coa/frap02.pdf  

Eighth Circuit Local Rules (separate from FRAP) (Adobe Acrobat file)
http://www.ca8.uscourts.gov/newrules/coa/localrulesdec02.pdf  

8th Cir. IOPs (Adobe Acrobat file)
http://www.ca8.uscourts.gov/newrules/coa/IOP-final.pdf  

8th Cir "Handbook" (font and format info for briefs and motions) (Adobe Acrobat file)
http://www.ca7.uscourts.gov/ftips/type.pdf  

Ninth Circus (WA, CA, HI)
www.ca9.uscourts.gov/  

FRAP and 9th Circus Rules
http://www.ca9.uscourts.gov/ca9/Documents.nsf/FRAP+and+Circuit+Rules?OpenView  

Ninth Circus "Pro Se info Packet" (Adobe Acrobat file)
http://www.ca9.uscourts.gov/ca9/Documents.nsf/174376a6245fda7888256ce5007d5470/7 fb84500dd29323888256c3e005d2315/$FILE/revisedProSe03.PDF  

Tenth Circuit (KS, WY, CO, OK, NM, UT)
www.ck10.uscourts.gov/  

FRAP and 10 Circuit Rules
http://www.ck10.uscourts.gov/circuit/rules.html  

"General Orders"
http://www.ck10.uscourts.gov/circuit/gen_orders.cfm  

"Public education page"
http://www.ck10.uscourts.gov/circuit/education.cfm  

Eleventh Circuit (FL, GA, AL)
http://www.ca11.uscourts.gov/  

Rules and other links Page
http://www.ca11.uscourts.gov/rules/index.php  

FRAP and 11th Cir Rules and IOPs)
http://www.ca11.uscourts.gov/documents/pdfs/BlueDEC03.pdf  

 

http://www.freedomscry.us/law-links.html

 

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Freedom's Cry Foundation

 

P.O. Box 1436

Laurens, South Carolina 29360

864-984-2305 (Nancy Capps)

ceo@freedomscry.us

 

http://www.freedomscry.us/