Code enforcement official subject to suit for unlawful inspections

by Victoria Heldt

Jacob v. Killian
(Federal Sixth Circuit Court of Appeals, September 12, 2011)

In October of 1999, Killian, a code enforcement officer for the Township of West Bloomfield, charged Jacob for having “blight” and “junk vehicles” in his yard.  He issued the violation after learning of 10 similar prior complaints regarding Jacob’s property.  Jacob pled guilty to the charge, subject to a plea agreement in which he agreed to clean up the area and remove the fence supports within 14 days.  Killian returned to inspect Jacob’s property pursuant to the agreement and discovered he had not complied with the terms.  Subsequently, Jacob served a 30-day jail sentence over portions of October and November 1999.

Jacob sued Killian, claiming that Killian continued to enter and inspect the curtilage of his property without a warrant after Jacob’s incarceration, and that this activity was a violation of his 4th Amendment rights.  Killian argued that he should be granted a summary judgment based on qualified immunity.  The principle of qualified immunity protects government officials who perform discretionary functions from civil liability so long as their behavior does not violate clearly established constitutional rights.  The district court denied his request.

On appeal, Killian argued that Jacob lacked sufficient evidence to support the claim that Killian ever entered his backyard after the incarceration (except for on January 7, 2000, which is relevant to a separate claim).  Jacob had testified that he saw Killian enter his property several times and saw him take photographs on some of the occasions.  The Court noted that Killian had previously admitted to inspecting the property on June 26, 2001, which supports Jacob’s testimony.  Additionally, the Court found that Jacob’s testimony itself is enough evidence to defeat a request for summary judgment.

Killian then argued that he should be granted qualified immunity since he completed the inspections of the property pursuant to an order.  The Court stated that the “just following orders” defense holds no merit in the court system.  Furthermore, Killian never provided any actual evidence that he was ordered by his superior within the Township to inspect Jacob’s property subsequent to Jacob’s incarceration.

Killian submitted a picture taken on January 7, 2000 of Jacob’s property as evidence that he never entered the protective curtilage of Jacob’s home.  He admitted that he visited the property on that date, but that the scenery in the picture proves that he never encroached on a constitutionally protected area.  The Court decided not to address this claim since the issues regarding the other incidents in the case would still prevent a favorable ruling for Killian.

Next, Killian alleged that Jacob consented to the inspections as a term of his probation.  The Court determined that this claim had no merit, because Jacob was never actually put on probation.  The terms of his plea bargain stated he would be put on probation if he complied with the terms of the agreement and evaded time in jail.  Jacob was found to be in violation of the agreement and served a 30-day jail sentence; therefore, he was never put on probation.  Additionally, the Court noted that even if Jacob had received probation, it would not mean that he waved his fourth amendment rights regarding entrance onto his property.

After denying Jacob’s request for attorney’s fees or sanctions against Killian, the Court affirmed the district court’s denial of summary judgment.





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