Bennis, Gary v. Town of Garfield et al
Filing
39
OPINION & ORDER granting 20 Motion for Summary Judgment. The clerk or court is directed to enter judgment in favor of defendant and close this case. Signed by District Judge James D. Peterson on 8/5/2016. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
GARY BENNIS,
v.
Plaintiff,
OPINION & ORDER
15-cv-479-jdp
ERIC KLEVEN,
Defendant.
Defendant Eric Kleven is a private contractor who performs tax assessments for the
Town of Garfield, Wisconsin. Plaintiff Gary Bennis owns 177 acres of mostly undeveloped
property in the Town of Garfield. Kleven went on to Bennis’s land to perform a tax
assessment, and he discovered three small, elevated cabins, which resulted in a modest
increase in the assessed value of Bennis’s property. Bennis got the town to reduce the
assessment, but now he is going after Kleven with this suit under 42 U.S.C. § 1983. Bennis
contends that Kleven’s entry and inspection of his property was an unreasonable search that
violated the Fourth Amendment.
Kleven has moved for summary judgment, Dkt. 20, contending that the inspection of
Bennis’s property was a legal property tax assessment, and that he did not conduct a search
because he inspected Bennis’s property only from open fields, without entering the cabins or
their curtilage. Bennis may not have been properly notified of Kleven’s inspection, and for
purposes of this motion, the court will assume that the cabins are the equivalent of a
residence in which Bennis had a reasonable expectation of privacy. But Bennis has not
adduced evidence from which a reasonable jury could conclude that Kleven climbed the
structures to enter the cabins or their curtilage. Thus, Kleven did not conduct a “search”
within the meaning of the Fourth Amendment, and the court will grant Kleven’s motion for
summary judgment.
UNDISPUTED FACTS
Bennis owns 177 acres of land in the Town of Garfield, Wisconsin. When he bought
the land in 2009, the property had a few simple deer stands. By 2012, Bennis had built an
open shed and six elevated structures. The parties have sometimes referred to these structures
as “deer stands,” but at least for purposes of this case, Bennis has taken to calling them
“cabins.” The court will go with “cabins,” because they are enclosed under a roof, they have
locking doors, glass windows, and woodstoves for heat. Each of the cabins is approximately
30 feet above the ground, and most of them have some area of deck at the level of the cabin.
The main cabin is particularly home-like: it could sleep five, its floor is covered with carpet
and tile, and it has a small kitchen. The main cabin has a spacious, wrap-around deck. The
other five cabins are apparently somewhat more spartan, although Bennis’s declaration
implies that members of Bennis’s family have slept in them. For purposes of Kleven’s motion,
the court will assume that all the cabins are essentially residences in which Bennis would have
a reasonable expectation of privacy. There are no posted “Do Not Enter” or “No Trespassing”
signs on the Bennis land.
Kleven is a private contractor engaged by the Town of Garfield to assess properties for
taxes. On June 5, 2012, Kleven came to Bennis’s property to perform a tax assessment
without notifying Bennis or getting his consent or a warrant. Kleven found three of the
cabins (not the main one) and the shed. Kleven measured each of the three cabins and took
photographs. Kleven left the property without leaving notice of the assessment. Although
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Kleven contends he mailed notice of the assessment to Bennis, Bennis denies receiving any
mailed notice. For purposes of Kleven’s motion, the court will assume that Kleven provided
no notice either before or after the assessment, and that Bennis found out about Kleven’s
entry onto his property only when he received notice of the increased tax assessment. Relying
on preexisting data about the property and his measurement and inspection of the cabins,
Kleven assessed the newly discovered improvements at $22,600. Bennis’s appeal to the Board
of Review reduced his assessment by $7,800.
Bennis filed this suit under 42 U.S.C. § 1983, which raises a federal question; the
court therefore has jurisdiction under 28 U.S.C. § 1331.
ANALYSIS
A. Summary judgment standard
Kleven has moved for summary judgment that he did not conduct an illegal search,
and he has supported his motion with admissible evidence. Thus, to avoid summary
judgment, Bennis “must set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). He may not simply rely on the
allegations in the pleadings to create such a dispute, but must “demonstrate that the record,
taken as a whole, could permit a rational finder of fact to rule in [his] favor.” Johnson v. City of
Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). Because Bennis bears the burden of proving
that Kleven violated his constitutional rights, he must present “sufficient evidence to create
genuine issues of material fact to avoid summary judgment.” McAllister v. Price, 615 F.3d 877,
881 (7th Cir. 2010).
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B. Section 1983 prerequisites
The parties agree that Bennis has satisfied the prerequisites to a suit under 42 U.S.C.
§ 1983. Kleven was acting as an agent of the Town of Garfield, and thus he was acting under
color of state law when he conducted the assessment. See Chavez v. Ill. State Police, 251 F.3d
612, 651 (7th Cir. 2001). Kleven himself conducted the assessment, so he would be the
individual who personally committed any constitutional violation. Id.
C. Constitutional claims
The court must view the record in the light most favorable to Bennis. Accordingly, the
court will assume that Kleven did not comply with the notice requirements for a tax
assessment (because he did not leave a notice at the property after his inspection). Although
irregularities in Kleven’s tax assessment might violate state law, they do not establish a
violation of his constitutional rights, in this case the Fourth Amendment. The Fourth
Amendment provides, in relevant part, that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated.” U.S. Const. amend IV. Fourth Amendment interests are particularly acute when
the purported search involves the home and its curtilage, the area immediately surrounding
and associated with it. Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013) (citing Oliver v.
United States, 466 U.S. 170, 176 (1984)).
As the party with the burden, Bennis must now adduce evidence to show that Kleven
conducted a search. And that turns on a reasonably straightforward factual issue: did Kleven
enter the cabins or the curtilage attached to them? Given the usual structures at issue here—
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cabins on stilts 30 feet in the air—the curtilage is sharply defined: the deck area at the level
of the cabins. 1
Kleven denies that he went up the stairs at all, so he never entered the curtilage. He
contends that he did all his observation and measuring from ground level. From a legal
perspective, he relies the “open fields” doctrine, under which the government’s intrusion
upon open fields is not an unreasonable search proscribed by the Fourth Amendment. Oliver,
466 U.S. at 177. An open field is “any unoccupied or undeveloped area outside of the
curtilage.” Id. at 180 n.11. Kleven has his affidavit and deposition to provide the necessary
evidentiary support that he did not go up the stairs. Dkt. 24, ¶ 13 (he did not “step onto”
any stairs); Dkt. 27 (Kleven Dep. 51:24-52:8) (or “look in any windows”). According to
Kleven, he merely walked on part of the property, looked at the stands, paced them off,
measured them with a laser, and photographed them. Factually similar searches have been
repeatedly upheld as constitutional. 2
1
The evidence in this case sets up a factual dispute: Kleven climbed the stairs or not. But
even if Kleven entered Bennis’s curtilage, his assessment does not necessarily constitute a
search. Widgren v. Maple Grove Twp., 429 F.3d 575, 583-84 (6th Cir. 2005) (holding that “a
property assessor does not conduct a Fourth Amendment search by entering the curtilage for
the tax purpose of naked-eye observations of the house’s plainly visible exterior attributes and
dimensions—all without touching, entering or looking into the house”). The assessment was
of an administrative—and not criminal—nature. Thus, it was subject to a relaxed
reasonableness standard. Camara v. Mun. Ct. of the City & Cty. of S.F., 387 U.S. 523, 536-37
(1967).
2
See, e.g., Air Pollution Variance Bd. of Colo. v. W. Alfalfa Corp., 416 U.S. 861, 864-65 (1974)
(a health inspector entered property to inspect plumes of smoke emitted from a building);
Ehlers v. Bogue, 626 F.2d 1314, 1315 (5th Cir. 1980) (per curiam) (a health inspector entered
property to visually survey the outside of an apartment building). More intrusive
administrative searches have also been upheld. See, e.g., Artes-Roy v. City of Aspen, 31 F.3d
958, 962 (10th Cir. 1994) (a building inspector pushed open a door and entered into a house
to speak with workers there).
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To survive summary judgment, Bennis must come forward with evidence sufficient to
create a genuine dispute on this point. A dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby., 477 U.S. at
248. A mere scintilla of evidence is not enough. Id. at 252. The evidence must be sufficiently
probative, in the aggregate, to lead a rational trier of fact to find for Bennis. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
In light of these requirements, Bennis has a major problem here: no one else was
present when Kleven entered his property. And even if Bennis were to cast doubt on Kleven’s
account of what happened, Bennis has no affirmative evidence of his own. Bennis contends
that a reasonable juror could conclude from circumstantial evidence that Kleven has lied
under oath, and that he actually “ascended to the level of the [cabins], measured them, and
either looked into them or entered them or both.” Dkt. 36, at 8. Bennis makes a five-point
argument in support, but the court is not persuaded.
First, Bennis contends that Kleven’s description of the deer stands as “very nice,
actually” implies that Kleven must have seen the interiors of the cabins. Dkt. 31, at 26-27.
But that statement raises no such inference. When Kleven went to the Bennis property, the
only structures he expected were deer stands. Based exclusively on the exteriors as shown in
Kleven’s photographs, Dkt. 27-14, it is indisputable that the structures are indeed “very nice”
for deer stands. Nothing about this statement implies that Kleven saw the interiors of the
cabins.
Second, Bennis contends, based on Kleven’s deposition testimony, that Kleven
conducted a full revaluation of the Bennis property. Dkt. 31 at 27. This kind of assessment,
according to Bennis, requires an assessment of the interior of any structures, and thus Kleven
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would have had to climb the stairs and at least look into the windows. But this argument fails
because it relies on an incomplete view of the legal framework of Kleven’s work for the town.
Kleven’s deposition testimony is that the Town of Garfield did a revaluation in 2012. But
Kleven explained that even if revaluation ordinarily required assessment of interiors, he could
not inspect the interiors on the Bennis property because Wisconsin trespass law prevented
him from doing so. Dkt. 27, at 51:14-52:21. Kleven’s deposition testimony is that he did not
do a full revaluation of the Bennis property, and it does not raise an inference that he
violated the trespass statute so that he could do an assessment of the interiors of the cabins.
Bennis’s third and fourth points are closely related. Bennis contends that Kleven’s
testimony regarding his measurements of the cabins shifted, making Kleven’s testimony
unreliable, so that a reasonable jury would be entitled to disbelieve his testimony that he did
not climb the stairs. Dkt. 31, at 27-29. But Kleven’s testimony is not inconsistent. Kleven
testified at the Board of Review hearing that he measured the dimensions of the cabins,
although he was not asked about the details of his measurement because that issue was not
contested. Dkt. 33-2, at 28. Kleven testified in both his affidavit and his deposition that he
measured the cabins from the ground, using a laser measuring device. Dkt. 24, ¶ 15; Dkt. 27,
at 41:6-42:12. In deposition he testified extensively about the capabilities of the laser device
and how he used it. The device he used was not a tripod-mounted laser that was capable of
measuring the distance between two points that are approximately equidistant from the
device. Dkt. 27, at 43:8-44:23. But he explained how he could use his laser device to measure
dimensions by choosing the location from which to make measurements. See Dkt. 27-8
(annotated diagram). He testified that he did not specifically recall how he had measured the
Bennis property four years earlier, and he also testified that with a small, simple structure like
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the Bennis cabins, he could easily estimate their dimensions by eye, based on his experience.
Dkt. 27, at 45:22-46:24. Kleven’s testimony at the hearing, in his affidavit, and in his
deposition is consistent. His admission that he could not remember all the details of his fouryear old calculation of the dimensions of the Bennis cabins does not substantially undermine
his credibility. And even if Bennis could undermine Kleven’s credibility, Bennis still has no
affirmative evidence that Kleven climbed the stairs to inspect the cabins.
Fifth, Bennis contends that Kleven told the Jackson County Sheriff that the cabins
contained woodstoves, from which one could infer that Kleven had seen the interior of the
cabins. Dkt. 31, at 29 (citing Dkt. 27-11, at 3). In his deposition, Kleven explained that he
assumed that there were woodstoves because he saw stovepipes coming out of the cabins.
Dkt. 27, at 31:7-10. Bennis argues that the presence of a stovepipe does not necessarily
indicate a woodstove, because a stovepipe could be used to ventilate a propane device. The
precision of Kleven’s information “means he had to enter or at least look in the windows.”
Dkt. 37, at 29. Kleven reported accurate information about the interior of the Bennis cabins,
but that does not compel the inference that he looked inside them. Woodstoves are
ubiquitous in rural Wisconsin. So a natural inference to draw from a stovepipe coming from a
tiny cabin on undeveloped property in rural Wisconsin is that the cabin has a woodstove,
even if, strictly speaking, a propane heater is another possibility. This evidence is, at most,
“merely colorable,” which means that it is not enough to be substantially probative of the fact
at issue. Liberty Lobby, 477 U.S. at 249-50.
Applying well-established principles of summary judgment methodology, the question
is whether, considering the evidence as a whole, a reasonable jury could find by a
preponderance of the evidence that Kleven climbed the stairs and looked inside the Bennis
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cabins. No reasonable jury could make this finding on the evidence now before the court.
Kleven’s testimony is internally consistent, and Bennis has no external evidence to impeach
it. The best Bennis can come up with is that Kleven’s correct information about the
woodstoves implies that he looked inside the cabins. But no reasonable jury could find that
Kleven repeatedly lied under oath on the basis of this meager inference. A reasonable jury
would have to conclude that it was more likely than not that Kleven never climbed the stairs,
and that he simply assumed that the stovepipes he saw were connected to woodstoves.
Bennis makes one more pertinent argument: that Kleven’s use of a laser measuring
device is equivalent to the thermal imaging scanner used in Kyllo v. United States, 533 U.S. 27
(2001). Bennis contends that the laser device is technology not in general public use, and
that training it on a home breaches our expectation of privacy. Dkt. 31, at 31. The court
rejects both notions. First, laser measuring devices have long been commonplace and
available at virtually any home supply store. Second, a laser measuring device is not capable
of “explor[ing] details of the home that would previously have been unknowable without
physical intrusion.” Kyllo, 533 U.S. at 40. The laser measuring device is the functional
equivalent of the tape measure, albeit one that can reach spots that might be less physically
accessible. But it reaches only spots that are visible, so it affords no capacity to explore the
otherwise unknowable, such as the invisible spaces within a home. The use of a laser
measuring device does not constitute a search.
Because Bennis cannot establish that Kleven conducted a search, the court need not
reach Bennis’s arguments that Kleven violated Wisconsin law concerning the conduct of tax
assessments.
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ORDER
IT IS ORDERED that:
1. Defendant Eric Kleven’s motion for summary judgment, Dkt. 20, is GRANTED.
2. The clerk or court is directed to enter judgment in favor of defendant and close
this case.
Entered August 5, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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