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Date: 10-06-2021
Case Style:
ERIC S. CLARK v. CITY OF WILLIAMSBURG, KANSAS
Case Number: 19-3237
Judge: Mary Beck Briscoe
Court: UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Plaintiff's Attorney:
Defendant's Attorney: CITY OF WILLIAMSBURG, KANSAS Attorney’s Office
Description:
Denver, CO - Constitutional Rights lawyer represented defendant with a violation o his his First Amendment rights, and his Fourth Amendment right claim.
Clark lives in a house located in a sparsely populated area within the northern
limits of the City. The front of the house faces the east. A gravel driveway runs
from the back of the house, where there is a small parking lot type of area, around the
south of the house and eastward to a road (K-273 Highway, also known as Dane
Avenue) that runs north and south along the eastern boundary of Clark’s property.
Clark purchased the property on July 29, 2003. It is undisputed that in the
early 1970s the prior owners deeded a total of .49 acres of the property, located on
the eastern edge directly adjacent to the existing public road, to the State Highway
Commission of Kansas for highway purposes. It is disputed whether the City now
has rights in that .49 acres of the property; the City maintains that it does, while
Clark denies this.
On February 13, 2015, Tony De La Torre, a code enforcement officer
employed part-time by the City, conducted an inspection of what he believed to be
the City’s right-of-way in front of Clark’s residence. Ten days later, on February 23,
2015, De La Torre sent Clark a written “NOTICE OF VIOLATION” (hereinafter
Notice of Violation). ROA at 581. The Notice of Violation stated that De La Torre,
during his inspection, “found that there [we]re three large barrels, several signs, and
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other affixed objects . . . located with [sic] the City’s eighty foot easement” that
“w[ould] need to be removed.” Id. The Notice of Violation further stated that
“[u]nder the City[’s] . . . Ordinance, political signs shall not be placed on or
otherwise affixed to any public building or sign, right of way, sidewalks, utility pole,
street lamp post, tree, or other vegetative matter, Public Park, or other public
property.” Id. The Notice of Violation stated that De La Torre would “be conducting
a re-inspection of the right of way on March 9, 2015,” and it advised that “[i]f the
violations [we]re not corrected a citation m[ight] be issued and objects removed from
the City easement.” Id. Lastly, the Notice of Violation stated that if Clark “ha[d]
any questions” or believed he “received th[e] letter in error,” he should “contact City
Hall immediately by phone . . . or actions w[ould] continue toward resolution.” Id.
On February 25, 2015, Clark sent a letter to De La Torre acknowledging the
Notice of Violation. Id. at 583. The letter noted, in part, that the Notice of Violation
“failed to identify the specific lawful authority for alleging any violation.” Id. The
letter further stated that, “[t]o [Clark’s] knowledge, [he was] not in violation,” and it
in turn asked De La Torre to “please provide the specific law/code/ordinance/etc”
that he “believe[d] [wa]s being violated.” Id. The letter also stated that if De La
Torre was “unaware of liability under 42 U.S.C. 1983, and costs (§ 1988),” he should
“become familiar with [his] exposure to personal liability as well as liability to the
City.” Id.
On March 16, 2015, De La Torre returned to Clark’s property with the intent
of speaking to Clark about, and hopefully resolving, the alleged violations. Id. at
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464, ¶ 26; Id. at 530 (De La Torre deposition). De La Torre parked his vehicle on the
City’s right-of-way near the road and began walking up the gravel driveway towards
Clark’s house. Id. at 464, ¶ 26. On that day, there were no “No Trespass” signs
posted on the property anywhere between the road and the house. Id. at 462, ¶ 15.
There was no sidewalk or worn path leading to the front porch and door of the house.
The front porch was covered and Clark had placed a tarp over the front porch to
partially enclose it. There was a chair and an old mattress near the entrance to the
front porch, and a visitor would have had to squeeze by the chair and the mattress to
enter the front porch area. According to De La Torre, “[i]t was very evident that there
was no way that [he] could get to the front porch because of the objects that were on
the porch.” Id. at 530. Because of that, and because he also “heard someone in the
back” of Clark’s house, he proceeded to walk up the gravel driveway and toward the
back of the house, rather than attempting to approach the front porch and front door
of the house. Id.
At the back of Clark’s house, Clark had hung sheets on ropes to form a tenfoot square canopy with fabric walls that enclosed the back door to the house. De La
Torre walked to within ten feet or less of this enclosure and called out for Clark.
Clark exited the rear door of his house, walked through and exited the square fabric
canopy, and began yelling at De La Torre to get off of his property. 1
According to
1 According to Clark, he asked De La Torre to leave three or four times, and
approximately 10 to 15 seconds expired between each request.
.
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De La Torre, Clark then turned and went inside his house. De La Torre returned to
his vehicle and left. According to Clark, De La Torre did not leave until Clark
threatened to call the sheriff. De La Torre was physically present on Clark’s property
for approximately three to six minutes (De La Torre estimated it was three to four
minutes, while Clark estimated it was five to six minutes).
On March 18, 2015, Clark sent a lengthy letter to the City. The letter
acknowledged that Clark’s property “border[ed] a right of way,” but asserted that
Clark “ha[d] the right to place anything anywhere on [his] private property that [wa]s
subject to right of way usage so long as it d[id] not unduly interfere with the purposes
of the right of way.” Id. at 592. The letter warned the City that it was violating, or
threatening to violate, Clark’s Constitutional rights, and it advised that Clark might
file suit against the City.
Following receipt of Clark’s letter, the City’s Mayor met with the City
Attorney, who recommended that the City not continue its investigation of potential
ordinance violations by Clark. The Mayor and the City Council subsequently met
and purportedly decided not to pursue the Notice of Violation any further. The
Notice of Violation, however, has never been formally withdrawn by the City.
On July 10, 2015, Clark attended a session of the City’s Municipal Court. On
the docket that day were two status hearings for other defendants; Clark did not have
a matter on the docket. Clark, however, proceeded to “disrupt[] the proceedings and
would not permit the judge to open court.” City of Williamsburg v. Clark, No.
115,921, 2016 WL 5171918 at *1 (Kan. Ct. App. Sept. 16, 2016). During the court
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session, Clark (a) refused to stop videotaping the proceedings, despite being told to
stop by the court, (b) questioned the Municipal Court judge’s authority to conduct the
proceedings, (c) refused to identify himself by name, and (d) refused to remain silent.
The judge, in response, found Clark in direct contempt of court and sentenced him to
two hours in jail. ROA at 132, ¶ 31. Clark unsuccessfully appealed that matter to the
Kansas Court of Appeals. City of Williamsburg, 2016 WL 5171918 at *1, 6.
On July 22, 2015, the City suspended the Code Enforcement Officer position
due to budget constraints. De La Torre left the City’s employment as a Code
Enforcement Officer and has not been replaced. Since approximately that time, the
City has also been without a municipal court judge, and no judge has held a
municipal judicial proceeding in the City since May 2016.
On May 20, 2019 (approximately 11 days after the district court in this case
determined that one subsection of the challenged sign ordinance was
unconstitutional), the City Council passed a motion imposing a moratorium on
enforcement of any provision of the City’s sign regulations pending “further study.”
ROA at 1141.
II
On January 23, 2017, Clark, appearing pro se, initiated this action by filing a
complaint pursuant to 42 U.S.C. § 1983 against the City. ECF No. 1. The complaint
alleged, in pertinent part, that “[t]he City implemented policies which were the
moving force behind the deprivation of the constitutionally protected rights of Clark,
including the First and Fourth Amendments’ rights to freedom of expression and
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right to be free from unreasonable searches.” Id. at 11. Count I alleged a violation of
Clark’s First Amendment rights. Count II alleged a violation of Clark’s Fourth
Amendment rights. The complaint asked for relief in the form of damages and
declaratory and injunctive relief, including enjoining the City from enforcing its sign
regulations and from entering any part of Clark’s property without an invitation from
Clark in writing.2
On June 1, 2018, Clark filed a motion for partial summary judgment seeking a
“liability determination” as to his claims. ROA at 146. Clark asserted in his brief in
support that “[b]ut for the City’s [sign]” ordinance, he “would have placed political
signs . . . in the unpaved portion of the right of way” on his property “nearer than 20
feet from the centerline of the road and left them in place . . . from July 4, 2016 to
December 31, 2016 and . . . would have placed political signs outside of any right-ofway, but within an area of his private property which the City enforces its right of
way restrictions . . . and left them in place . . . from July 4, 2015 to December 31,
2016.” Id. at 150, ¶ 10. Clark further asserted that his “property is ‘in a residential
one district’ and” that, “but for the City’s regulation (Article 8, § 4(A)(6)),” he
“would have placed newly personalized political signs outside of any right-of-way
and in excess of ten(10) [sic] square feet.” Id., ¶ 12.
2 On February 14, 2018, Clark filed an amended complaint that was
substantially similar to the original complaint. Both the original and amended
complaints included claims for inverse condemnation or an unconstitutional taking of
Clark’s property by the City. Those claims are not at issue in this appeal.
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With respect to his Fourth Amendment claim, Clark argued that “[t]he moving
force of actions which violated [his] . . . right to be free from unreasonable searches
. . . was the City’s Zoning Regulations which direct[ed] such enforcement action
. . . .” Id. at 182. Clark also argued that “the City’s lack of guidance (failure to train)
to the City’s Code Enforcement Officer” resulted in a violation of his Fourth
Amendment rights. Id. According to Clark, De La Torre violated his Fourth
Amendment rights by failing to proceed to the front door of Clark’s house and,
instead, “explor[ing] another path that lead[]” towards the back of Clark’s house and
“hollering or yelling in effort to make contact” with Clark. Id. at 185.
Lastly, with respect to his First Amendment claim, Clark argued, in pertinent
part, that the City’s sign ordinance was “content based” and infringed on his First
Amendment rights. Id. at 194. In support, he argued that the ordinance
“prohibit[ed], through a chilling effect,” his “ability . . . to express himself freely on
certain topics at certain times, in certain manners, and in certain places.” Id. at 200.
On August 9, 2018, the City filed its own motion for summary judgment.
With respect to Clark’s First Amendment claim, the City argued that Clark lacked
standing to challenge the City’s sign ordinance. In support, the City noted that most
of the provisions of that ordinance “ha[d] never been applied nor even threatened to
be applied to him or his property,” and that the one provision that was implicitly
relied on in the Notice of Violation (which addressed signs located on the City’s
rights-of-way) was never actually enforced against Clark. Id. at 477. The City also
argued that “[e]ven if Clark had standing to challenge the” subsection of the
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ordinance that “restrict[ed] signs on public property, that [sub]section d[id] not
transgress the First Amendment” because it was content neutral. Id. at 481. Lastly,
the City argued that the court should sever any offending portions of the ordinance.
As for Clark’s Fourth Amendment claim, the City argued that De La Torre’s
brief entry onto Clark’s property on March 16, 2015, did not constitute an illegal
search prohibited by the Fourth Amendment. More specifically, the City argued that
“[b]ecause De La Torre never left the driveway, never entered any ‘curtilage’ of
Clark’s residence and never performed any search subject to Fourth Amendment
restrictions, his three to four-minute entry onto Clark’s property in an effort to talk
with [Clark] did not transgress the Fourth Amendment.” Id. at 493. The City also
argued that, even if De La Torre had violated Clark’s Fourth Amendment rights, he
was not acting pursuant to any City policy and, thus, the City was not responsible for
his actions.
On May 9, 2019, the district court issued a memorandum and order that
granted in part and denied in part both parties’ motions. The district court granted
partial summary judgment in favor of Clark on his First Amendment claim “that
Article 8, § 4.A.(6)” of the City’s sign ordinance “[wa]s an unconstitutional contentbased restriction.” Id. at 1081. The district court also concluded that Clark lacked
standing to challenge any other provisions of the City’s sign ordinance, and thus
granted summary judgment in favor of the City as to that portion of Clark’s First
Amendment claim. Id. at 1081-82. As to Clark’s Fourth Amendment claim, the
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district court granted summary judgment in favor of the City on the grounds that
“there was no search of Clark’s property.” Id. at 1-2.
On May 17, 2019, May 20, 2019, and May 21, 2019, Clark filed motions to
amend the judgment. The district court denied those motions on June 19, 2019.
On July 17, 2019, the case proceeded to a jury trial on the issue of damages
relating to Clark’s First Amendment claim. At the conclusion of the evidence, the
jury found that Clark did not suffer compensatory damages as a result of the Notice
of Violation, and it awarded him $1 in nominal damages.
Judgment was entered in the case on July 18, 2019. Clark filed a motion to
amend the judgment and a motion for new trial, both of which the district court
denied. Clark then filed a timely notice of appeal.
III
Clark asserts six issues in his appeal. The first four of those issues pertain to
his First Amendment claim. The last two of those issues pertain to his Fourth
Amendment claim. For the reasons that follow, we reject all six issues and affirm the
judgment of the district court.
The First Amendment claim
We begin by addressing the four issues that pertain to the district court’s
resolution of Clark’s First Amendment claim.
a) Clark’s standing to challenge regulatory provisions
In the district court, Clark sought to challenge all provisions of the City’s sign
ordinance. The City, in its motion for summary judgment, argued in pertinent part
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that Clark lacked standing to challenge any part of the City’s sign ordinance. The
district court granted in part and denied in part the City’s motion and concluded that
Clark lacked standing to challenge anything other than the subsection of the
ordinance that was effectively cited in the Notice of Violation. In Issue IV of his
opening appellate brief, Clark challenges the district court’s grant of partial summary
judgment in favor of the City on the issue of standing.
“We review a district court’s grant of summary judgment de novo, applying
the same legal standard as the district court.” Powell v. Bd. of Cty. Comm’rs of
Muskogee Cty., 978 F.3d 1165, 1170 (10th Cir. 2020) (quotation marks omitted).
Under that legal standard, “[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
To establish standing, a plaintiff such as Clark must show: (1) he has suffered
an “injury in fact” that is concrete and particularized and actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action
of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision. See Friends of the Earth v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). At the summary judgment stage, a
plaintiff, in order to establish standing, must “set forth by affidavit or other evidence
specific facts, which for purposes of the summary judgment motion will be taken to
be true.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (citations and
quotations omitted).
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The City’s sign ordinance is found in Article 8 of the City’s Zoning
Regulations. Generally speaking, the ordinance classifies signs into functional and
structural types, establishes general standards for the size and placement of signs,
establishes exemptions from the regulations, sets forth design, construction and
maintenance requirements, outlines the types and sizes of signs permitted in each
type of zoning area, and establishes procedures for the removal of unsafe or illegal
signs.
Section 3 of Article 8 establishes the “General Standards” for signs that are
erected within the City’s limits. ROA at 80-82. Section 4 of Article 8 sets forth
specific “Exemptions” from the “General Standards” outlined in Section 3. Id. at
82-83. Of relevance here is § 4.A.(6), which states, in pertinent part, that “[t]he
following signs shall be exempt from the requirements of this article”:
Political signs, not exceeding a total of 20 square feet in area on a lot of
record zoned for non-residential purposes, or which is vacant and
unplatted, regardless of the zoning district classification; and not
exceeding a total of ten (10) square feet on a lot of record in a
residential zone district. Political signs shall be displayed for no more
than a four-week period preceding and a one-week period following an
election. Political signs shall not be placed on or otherwise affixed to
any public building or sign, right-of-way, sidewalk, utility pole, street
lamp post, tree or other vegetative matter, or any public park or other
public property.
The City recognizes that the expression of political speech is an
important and constitutionally protected right; that political signs have
certain characteristics that distinguish them from many of the other
types of signs permitted and regulated by the City, including the fact
that these signs generally do not meet the regular structural design of
permanent signs, given their temporary nature; that political signs
therefore present a potential hazard to persons and property; and that the
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City must impose reasonable time limits on the display of political signs
for these reasons.
Id.
The district court concluded that Clark lacked standing to challenge any
provision of Article 8, except for § 4.A.(6). It was that subsection, the district court
concluded, that De La Torre implicitly referenced in the Notice of Violation that he
issued to Clark. Although Clark argues on appeal that the entirety of the City’s sign
ordinance should have been addressed and declared unconstitutional, he points to no
evidence that could establish that he was personally impacted, let alone injured, by
the application of any of the other provisions of the ordinance. More specifically,
there is no evidence that any City officer found that the signs posted on Clark’s
property were in violation of any of the other provisions of the City’s sign ordinance,
or in turn that any City officer ever pursued removal of such signs by issuing written
notice to Clark pursuant to the procedures outlined in Article 8, § 10 of the City’s
sign ordinance.3
See Winsness v. Yocom, 433 F.3d 727, 732 (10th Cir. 2006) (“The
mere presence on the statute books of an unconstitutional statute, in the absence of
enforcement or credible threat of enforcement, does not entitle anyone to sue, even if
they allege an inhibiting effect on constitutionally protected conduct prohibited by
3 Clark, in his opening brief, argues that some of the other provisions of
Article 8 would apply to him and would prevent his political signs if, as the district
court directed, Article 8, § 4.A.(6) is severed from Article 8. Aplt. Br. at 19. Those
arguments, however, are entirely speculative and do not reflect what actually
happened in this case.
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the statute.”). Further, it is undisputed that the City decided not to pursue the Notice
of Violation that was issued by De La Torre.
In light of this undisputed evidence, we agree with the district court that Clark
lacks standing to challenge any provision other than Article 8, § 4.A.(6).4
b) The district court’s severance of Article 8, § 4.A.(6)
The district court granted partial summary judgment in favor of Clark on his
First Amendment claim, concluding that Article 8, § 4.A.(6) of the City’s sign
ordinance “[wa]s a content-based regulation that d[id] not pass strict scrutiny.” ROA
at 1091. The district court in turn severed Article 8, § 4.A.(6) “from the City’s sign
ordinance.” Id. at 1100.
In Issues I and II of his opening appellate brief, Clark argues that the district
court erred in “conclud[ing] that severing one exemption,” i.e., Article 8, § 4.A.(6),
“would cure the unconstitutionality of the entire ordinance.” Aplt. Br. at 4. In
support, Clark argues that “the District Court appears to have failed to apprehend that
within the severed exemption was a primary authorizing provision for allowing
political signs on CLARK’s residential property — apart from also enumerating a
‘right of way’ restriction for political signs (which the District Court appeared to
4 We also note two other relevant facts: there is no compliance officer
currently employed by the City, and the City has “pass[ed] a moratorium on
enforcement of any part of the sign code pending further analysis of the
constitutionality of the code.” Aple. Br. at 13. These facts appear to render moot
Clark’s challenge to any portion of the City’s sign ordinance other than Article 8,
§ 4.A.(6). See Jordan v. Sosa, 654 F.3d 1012, 1023-24 (10th Cir. 2011) (discussing
constitutional and prudential mootness).
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view as the sole constitutionality problem).” Id. (emphasis omitted). Clark argues
that “[t]he District Court’s severance of that authorizing provision changed the
controlling law(ordinance) [sic] such that previously permitted political signs were
no longer authorized on CLARK’s property (even outside of the right of way) leaving
the regulation bare of authorization for any political signs except for one token
expression of ‘[f]lags or emblems of a government or of a political, civil,
philanthropic, educational or religious organization’.” Id. Lastly, Clark argues that
“[b]ecause the First Amendment issue for trial was framed based solely upon harm
from the single severed provision, rather than [the City’s sign] ordinance being found
to be more broadly unconstitutional, . . . there is a reasonable probability that, but for
the improper framing of the issue for trial, the result of the proceeding would have
been different.” Id. at 5.
Because Clark lacks standing to challenge any part of the City’s sign
ordinance other than Article 8, § 4.A.(6), we conclude it is unnecessary for us to
address these arguments. In the event that the City lifts the moratorium it has
imposed on enforcement of its regulations and in turn attempts to enforce other
portions of its sign ordinance against Clark, Clark would then have the opportunity to
file a new lawsuit challenging the City’s actions.
c) Framing of the First Amendment issue for trial
In Issue III of his opening brief, Clark argues that the district court “erred by
improperly framing the First Amendment issue for trial.” Aplt. Br. at 15. Clark
asserts that “[t]his argument is predicated upon an errant interpretation (See ISSUE I)
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and improper severing (See ISSUE II).” Id. According to Clark, “[t]he District
Court’s ruling necessarily framed the issue for trial as being limited to only one
provision of the” City’s sign ordinance. Id. (emphasis in original). He argues that
“[i]f . . . Article 8 were found to be more broadly unconstitutional instead, then [he]
could have shown additional evidence of damages at trial.” Id. at 15-16. Clark
asserts that “[w]ith a different understanding (e.g., that the entirety of Article 8 was
unconstitutional) going into trial, [he] could have shown further injury through
evincing what [De La Torre’s] belief was when he issued the notice of violation to
[Clark] about ‘other affixed objects’, e.g., threatened removal of a cross and even
removal of a mailbox.”5
Id. at 16 (citation omitted).
For the reasons already discussed, we conclude that the district court did not
err in limiting the damage issues at trial to those pertaining to Article 8, § 4.A.(6).
Simply put, Clark lacks standing to challenge any other provision of the City’s sign
ordinance.
The Fourth Amendment claim
We now turn to the two challenges that Clark asserts in his appeal to the
district court’s resolution of his Fourth Amendment claim. In Issue V of his opening
appellate brief, Clark argues that the district court “erred by granting summary
judgment to the CITY on the Fourth Amendment claim — either by improperly
5 Clark concedes that these objects were not mentioned in the Notice of
Violation, but he asserts that De La Torre mentioned those items during his
deposition in this matter. Aplt. Br. at 17.
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drawing inferences in favor of the movant rather than the nonmovant and/or by
improperly finding a fact not actually asserted by any party.” Aplt. Br. at 27
(capitalization in original). In Issue VI, Clark argues that the district court “erred in
its determination of law concerning the Fourth Amendment as applied to the
undisputed evidence” and he concedes that “[t]he issue is somewhat derivative of”
Issue V. Id. at 37. Thus, in sum, Clark is challenging the district court’s grant of
summary judgment in favor of the City with respect to Clark’s Fourth Amendment
claim.
We begin our analysis of Clark’s arguments by briefly reviewing the Supreme
Court case on which Clark has consistently relied in support of his Fourth
Amendment claim, Florida v. Jardines, 569 U.S. 1 (2013). In Jardines, the Supreme
Court “consider[ed] whether using a drug-sniffing dog on a homeowner's porch to
investigate the contents of the home is a “search” within the meaning of the Fourth
Amendment.” Id. at 3. At the outset of its opinion, the Court noted that “[t]he
Fourth Amendment provides in relevant part that the ‘right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.’” Id. at 5. In other words, the Court noted, the Fourth
Amendment “establishes a simple baseline, one that for much of our history formed
the exclusive basis for its protections: When the Government obtains information by
physically intruding’ on persons, houses, papers, or effects, a search within the
original meaning of the Fourth Amendment has “undoubtedly occurred.” Id.
(quotations omitted). The Court then noted that “when it comes to the Fourth
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Amendment, the home is first among equals,” and that “the area immediately
surrounding and associated with the home,” i.e., the home’s curtilage, is “part of the
home itself for Fourth Amendment purposes.” Id. at 6 (quotations omitted). The
curtilage, the Court noted, “is intimately linked to the home, both physically and
psychologically, and is where “privacy expectations are most heightened.” Id. at 7
(quotations omitted).
Because “the officers’ investigation” in Jardines “took place in a constitutionally
protected area,” i.e., the front porch of the home, the Court “turn[ed] to the question of
whether [the investigation] was accomplished through an unlicensed physical intrusion.”
Id. Addressing that question, the Court noted that “[w]hile law enforcement officers need
not shield their eyes when passing by the home on public thoroughfares, an officer’s
leave to gather information is sharply circumscribed when he steps off those
thoroughfares and enters the Fourth Amendment’s protected areas.” Id. (quotations and
citation omitted). The Court in turn noted that it has recognized an “implicit license” that
“typically permits the visitor to approach the home by the front path, knock promptly,
wait briefly to be received, and then (absent invitation to linger longer) leave.” Id. at 8.
Thus, the Court held, “a police officer not armed with a warrant may approach a home
and knock, precisely because that is no more than any private citizen might do.” Id.
“But,” the Court also held, “introducing a trained police dog to explore the area around
the home in hopes of discovering incriminating evidence is something else.” Id. at 9.
The Court explained:
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There is no customary invitation to do that. An invitation to engage in
canine forensic investigation assuredly does not inhere in the very act of
hanging a knocker. To find a visitor knocking on the door is routine (even
if sometimes unwelcome); to spot that same visitor exploring the front path
with a metal detector, or marching his bloodhound into the garden before
saying hello and asking permission, would inspire most of us to—well, call
the police. The scope of a license—express or implied—is limited not only
to a particular area but also to a specific purpose. * * * Here, the
background social norms that invite a visitor to the front door do not invite
him there to conduct a search.
Id. (emphasis in original) (footnote omitted).
Having outlined the holding in Jardines, we next turn to the district court’s
analysis and rejection of Clark’s Fourth Amendment claim. The district court
recognized at the outset that Clark was “alleg[ing] that De La Torre performed an
unlawful search of his property on March 16, 2015,” and that “Clark attribute[d] this
to the City’s zoning ordinance or else the City’s failure to train its code enforcement
officers, either of which he contend[ed] ma[de] the City liable for De La Torre’s
actions.” ROA at 1103. The district court noted, however, that the threshold
question was whether De La Torre’s actions were unconstitutional in the first place.
Id. As to that issue, the district court noted that Clark’s theory was “that De La Torre
entered his property seeking information about whether Clark would remove the
signs and did so in a manner that ‘exceeded the implied license of Florida v.
Jardines.’” Id. (quoting ECF No. 79 at 34–35). More specifically, the district court
noted that “Clark t[ook] issue with the fact that De La Torre did not knock on his
front door but instead walked down the driveway after hearing noises toward the
back” of the house. Id.
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To address Clark’s theory, the district court began by outlining the applicable
law, with particular emphasis on Jardines. Jardines, the district court noted,
“explained that an implicit license exists that allows visitors to ‘approach the home
by the front path, knock promptly, wait briefly to be received, and then (absent
invitation to linger longer) leave,’” and that “[t]he same license is extended to law
enforcement officers.” Id. at 1104 (quoting Jardines, 569 U.S. at 8). Clark, the
district court in turn noted, was arguing “that Jardines drew an explicit line about
what is allowed for a knock-and-talk” and that, in particular, it authorized entry only
by the front path of a home. Id. The district court rejected Clark’s interpretation of
Jardines: “It [Jardines] did not hold that was the only permissible way to approach a
house.” Id. (emphasis in original). Rather, the district court stated, the facts of
Jardines involved an officer “bringing a drug-sniffing dog onto the front porch [of a
home] to do an investigation.” Id. at 1104–05. The district court also noted that in
United States v. Shuck, 713 F.3d 563 (10th Cir. 2013), we held that officers did not
violate the defendant’s Fourth Amendment rights by approaching the back door of his
trailer and conducting a knock-and-talk. Id. at 1105. The district court emphasized
that in reaching our conclusion, we concluded that the evidence established that
approaching the back door of the trailer was the normal route of access for visitors.
Id.
The district court concluded that “[t]he facts in Shuck [we]re similar to the
facts in” Clark’s case. Id. at 1106. The district court stated that it was “undisputed
that there was no path to the front porch” of Clark’s home “from the driveway, the
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steps were partially blocked with vegetation, and items on the porch at least partially
blocked the front door.” Id. The district court also stated that Clark admitted “that
he had ‘trained’ at least some of his visitors to come to the back entrance, and that he
hoped the state of the front entrance would deter visitors.” Id. “These undisputed
facts,” the district court concluded, “coupled with De La Torre hearing someone
towards the back of the house, made his decision to walk that way in an attempt to
contact Clark entirely reasonable,” and that “no reasonable jury could find
otherwise.” Id. The district court also concluded that “[t]he fact that the front door
was partially visible, as Clark contend[ed], d[id] not change the fact that De La Torre
reasonably assumed that the front door was not the primary entrance.” Id. In
addition, the district court concluded De La Torre did not exceed the scope of the
license because “[w]hen Clark asked him to leave, he did so,” and that “[i]t [wa]s
undisputed that De La Torre was at the property no more than a few minutes and left
within a minute of being asked to leave.” Id. Ultimately, the district court concluded
it “d[id] not need to determine whether De La Torre entered the curtilage of Clark’s
home, because even if he did, his actions in trying to find Clark on the property were
taken in accordance with the implied license to approach the house,” and that “[n]o
reasonable jury could conclude there was a search of Clark’s property under these
facts.”6
Id.
6 The dissent ignores this latter part of the district court’s ruling and suggests,
erroneously, that the question of whether a search occurred is not properly before us
on appeal. In fact, the issue of whether a search occurred for purposes of the Fourth
Amendment was raised by the parties in their summary judgment pleadings and
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In Issue V of his appellate brief, Clark argues that the district court erred in a
number of respects in granting summary judgment in favor of the City on his Fourth
Amendment claim. We need not address each of those arguments in detail, however,
ultimately addressed by the district court in its memorandum and order ruling on the
summary judgment motions.
Indeed, Clark himself squarely presented the issue in his own motion for
partial summary judgment. In that motion, Clark sought a “[l]iability determination
for Fourth Amendment violation,” and alleged in support that there was an
“unconstitutional search.” R. at 159-60 (capitalization omitted). In support, Clark
alleged that De La Torre “enter[ed] upon the curtilage of Clark’s property seeking
information about compliance without a warrant and without any applicable
exception to the Fourth Amendment warrant requirement.” Id. at 181. He further
argued that “[w]hen the government engages in physical intrusion of a
constitutionally protected area in order to obtain information, that intrusion
constitutes a violation of the Fourth Amendment.” Id. Clark argued that because De
La Torre “had a purpose of seeking information,” and “for reason of hearing noises,
skip[ped] any attempt to knock on the front door, and explore[d] another path that
lead[] towards the noises heard and beg[an] hollering or yelling in an effort to make
contact in order to gather the information sought, his actions became an unreasonable
search of the curtilage of Clark’s home.” Id. at 185.
The City, in its response to Clark’s motion for partial summary judgment and
in its own motion for summary judgment, argued that De La Torre’s entry onto
Clark’s property did not constitute an illegal search prohibited by the Fourth
Amendment. Id. at 686. More specifically, the City argued that “De La Torre
performed no search but only sought to contact Clark by walking down his driveway
to the rear of Clark’s residence.” Id. The City also argued that “[e]ven if the brief
presence of De La Torre on Clark’s property is considered under Clark’s version of
the incident, no Fourth Amendment violation occurred.” Id. at 691.
On May 9, 2019, the district court issued a memorandum and order ruling on
both Clark’s motion for partial summary judgment and the City’s motion for
summary judgment. The district court denied Clark’s motion for partial summary
judgment, and granted the City’s motion for summary judgment, “on Clark’s Fourth
Amendment claim (because there was no search of Clark’s property).” Id. at 1081-
82.
As a result, we conclude that the question of whether a search occurred within
the scope of the Fourth Amendment is, contrary to the dissent’s assertion, properly
before us on appeal. And, because we conclude that no search occurred, we conclude
it is unnecessary to address the other various points raised by the dissent concerning
what constitutes the curtilage of Clark’s home.
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because even if we were to assume that the district court erred in the respects asserted
by Clark, none of those errors undermine the district court’s ultimate conclusion that
the City was entitled to summary judgment on Clark’s Fourth Amendment claim. As
the Supreme Court in Jardines noted, the Fourth Amendment prohibits, in pertinent
part, unreasonable searches and thus prohibits the government from “obtain[ing]
information by physically intruding on” a person’s home. 569 U.S. at 5. Here, it is
undisputed that De La Torre entered Clark’s property with the sole intent of speaking
consensually with Clark and attempting to resolve the alleged violations. Further, it
is undisputed that he did not succeed in that goal. Although De La Torre asked to
speak with Clark, Clark responded immediately by yelling at De La Torre to leave.
De La Torre complied and, as a result, did not speak with Clark and thus gathered no
information. In short, no “search” occurred for purposes of the Fourth Amendment.
See Jardines, 569 U.S. at 9 n.4 (“[I]t is not a Fourth Amendment search to approach
the home in order to speak with the occupant, because all are invited to do that.”);
United States v. Carloss, 818 F.3d 988, 993 (10th Cir. 2016) (concluding that officers
did not conduct a Fourth Amendment search when they approached the front door of
a home and attempted to consensually speak with the occupant).
Finally, in Issue VI of his appellate brief, Clark argues, in pertinent part, that
“[t]here should be no dispute that a ‘knock and talk’ is a search” that, to be reasonable,
must “not stray outside of the implied license.”7
Aplt. Br. at 38. Again, we need not
7 The remainder of Issue VI, as Clark himself concedes, is basically a repeat of
the arguments asserted in Issue V.
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address this argument because, in light of the undisputed evidence presented in this case,
we conclude that no “knock and talk” occurred in this case. Although De La Torre
approached Clark and asked to consensually speak with him, Clark immediately and
repeatedly yelled at De La Torre to leave his property and De La Torre complied and left.
Thus, De La Torre did not complete any “knock and talk” and gathered no information.
Outcome: The judgment of the district court is AFFIRMED.
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