Jones v. Wildgen

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 27, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

M ARY ANTON JO NES, Tenant;
M ONTE TURNER, Tenant,

Plaintiffs-Appellants,

and No. 06-3384
(D.C. No. 03-CV-2369-KHV)
AARON KIRBY, Tenant; (D . Kan.)
RO NA LD LA W RENZ,
Housing Provider,

Plaintiffs,

v.

M ICHAEL W ILDGEN, Individually
and in his official capacity as City
M anager; DAVID CO RLISS,
Individually and in his official
capacity as City Attorney; BARRY
W ALTHALL, Individually and in his
official capacity as City Building
Inspector; VICTOR TORR ES,
Individually and in his official
capacity as Director of Neighborhood
Resources; CITY O F LAW RENCE,
KANSAS; LEE SM ITH; SHAW N
M UR PHY ; BRIAN JIM ENEZ,
Individually and in their official
capacities as Zoning Inspectors,

Defendants-Appellees,

and

D A V ID D U N FIELD ; SU E H A CK;
M A RTY K EN N ED Y ; M IK E
 R UN D LE; JIM H EN RY ;
ERV HODGES; Individually and in
their official capacities as City
Commissioners; JOH N D OE,
Individually and in his official
capacity as an employee for the City
of Law rence, since January 1, 2000,

Defendants.

OR D ER AND JUDGM ENT *

Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.

M ary Anton Jones and M onte Turner rented single-family houses in

Lawrence, Kansas, in single-family residential zoning districts (“RS” zoning

districts). In 2002, City inspectors requested permission to enter the houses and

inspect them, as provided for in various municipal ordinances, but both M s. Jones

and M r. Turner refused. After obtaining administrative search warrants, City

inspectors entered the houses and inspected them. They found several

housing-code violations in the house M s. Jones w as renting but none in the house

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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M r. Turner was renting. The inspectors later returned to M s. Jones’s residence

with another administrative search warrant and inspected the house to determine

whether the violations had been corrected.

M s. Jones and M r. Turner then filed this civil rights action under 42 U.S.C.

§ 1983 against the City and several of its employees, claiming that the inspections

violated their Fourth A mendment right to be free of unreasonable searches. 1 As

stated in the final pretrial order, they contended that the purpose of the

inspections was not to uncover health or safety violations but “to cause the tenant

plaintiffs to abandon lawful use of the properties they occupied.” Aplee. Supp.

App. at 136. The district court granted summary judgment to appellees,

determining that the searches were made pursuant to valid administrative

warrants. This appeal followed. W e have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

I.

W e review the district court’s grant of summary judgment de novo, using

the same legal standard applicable in the district court. Baca v. Sklar, 398 F.3d

1210, 1216 (10th Cir. 2005). Summary judgment should be granted “if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

1
This case originally involved a number of other plaintiffs and defendants as
well as a variety of claims. W e discuss only the facts and claims pertinent to the
issues raised in this appeal.

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material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). Under this standard, we view the evidence, and draw

all reasonable inferences from it, in the light most favorable to the nonmoving

party. Baca, 398 F.3d at 1216.

II.

Under Chapter Six, Article Thirteen of the City’s m unicipal code (City

Code), every owner of a single-family dwelling in an RS zoning district annually

must pay a $25.00 regulatory fee and obtain a rental licensing permit before

leasing the dwelling to an unrelated person. City Code § 6-1302. The Code also

provides that the exterior and interior of such properties must be inspected at least

once every three years to ensure compliance with governing City Code

provisions. Id. § 6-1304. The City may revoke the licensing permit if the

property is in violation of the City Code or if there exists a public nuisance,

which includes violations of the Uniform Housing Code. See id., §§ 6-1302,

6-1305. Relevant to the inspections conducted here, the City Code further

provides:

Absent emergency circumstances, whenever necessary to make
inspection to enforce any of the provisions of this Article, . . . the
public officer or his or her authorized representative may enter such
building or premises at all reasonable times to inspect the same or to
perform any duty imposed by this A rticle, provided that such entry is
pursuant to the law, and further provided that if such building or
premises be occupied, the public officer shall first present proper
credentials and request entry; and if entry is denied the public officer

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 shall have the authority to seek lawful entry pursuant to an
administrative search warrant or other lawful means.

City Code, § 6-1307 (emphases added). The City adopted this regulatory scheme

based on its findings that “reasonable regulation of the rental of dwellings in

single family residential zoning districts is necessary and appropriate for the

general public health, safety, and welfare” and “that the public health and safety

of tenants living in rental single family dwellings is enhanced with licensing and

regulatory requirements on rental dwellings in single family zoned districts.”

Ordinance No. 7326, preamble. 2

The Fourth Amendment “safeguard[s] the privacy and security of

individuals against arbitrary invasions by governmental officials.” Camara v.

M un. Court, 387 U .S. 523, 528 (1967). It 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 W arrants 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.

U.S. Const. amend. IV. Administrative searches of structures by municipal

inspectors “are significant intrusions upon the interests protected by the Fourth

Amendment.” Camara, 387 U.S. at 534.

2
Because the parties have not included in their appendices a copy of
Ordinance No. 7326, from which the district court quoted at length, we take
judicial notice of it from a copy available electronically from the district court’s
docket.

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 In Cam ara, the Supreme Court held that a routine periodic inspection of a

structure “is a ‘reasonable’ search of private property within the meaning of the

Fourth Amendment,” and explained that “‘probable cause’ to issue a warrant to

inspect must exist if reasonable legislative or administrative standards for

conducting an area inspection are satisfied with respect to a particular dwelling.”

Id. at 538. Those standards, “which will vary with the municipal program being

enforced, may be based upon the passage of time, the nature of the building (e.g.,

a multi-family apartment house), or the condition of the entire area, but they will

not depend upon specific knowledge of the condition of the particular dwelling.”

Id. (emphasis added). “If a valid public interest justifies the intrusion

contemplated, then there is probable cause to issue a suitably restricted search

warrant.” Id. at 539. As w e have explained, in issuing an administrative warrant,

the judicial officer “is not to give any consideration at all to the reliability of the

evidence or the probability of violation.” M arshall v. Horn Seed Co., Inc.,

647 F.2d 96, 100 (10th Cir. 1981). Instead, the judicial officer’s “role is limited

to verifying that the proposed search conforms to the ‘broad legislative or

administrative guidelines specifying the purpose, frequency, scope, and manner of

conducting the inspections.’” Id. (quoting M ichigan v. Tyler, 436 U.S. 499, 507

(1978)).

Recognizing that under the foregoing standards, administrative warrants to

perform routine inspections “issue upon recitation of the ordinance scheme”

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rather than upon a showing of probable cause that a violation may exist in the

targeted dwelling, M s. Jones and M r. Turner suggest that “the real issue is

whether the ordinance scheme . . . is based on ‘reasonable legislative or

administrative standards.’” Aplt. Br. at 6. They contend that they presented

evidence to the district court that established genuine issues of material fact as to

this question. But we see little or no connection between the evidence to which

they point (the applicability of which is unsupported by any legal authority) and

the inquiry they appear to ask of us. Specifically, they first recite their subjective

views of the condition of the houses they rented and the results of the inspections.

M s. Jones states that she had no health or safety concerns about her house, yet

violations were found. In contrast, M r. Turner states that he had concerns that the

house he rented had housing-code violations, but the inspection uncovered none.

M s. Jones and M r. Turner have not explained, and we fail to see, how their

subjective opinions of the condition of their respective residences are relevant to

whether the City’s rationale for implementing the ordinance scheme— to enhance

the health and safety of both the general public and those living in single-family

rental dwellings in RS zoning districts— is grounded in reasonable legislative or

administrative standards or serves a valid public interest. See Cam ara, 387 U.S.

at 538-39. And to the extent they are instead challenging the existence of

probable cause to issue the warrants to inspect their residences, whether or not

there were violations (and whether or not they thought there were violations) is

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irrelevant to the analysis. See M arshall, 647 F.2d at 100. 3 Furthermore, nothing

in the record suggests that appellants’ residences were not the type of building

encompassed by the applicable ordinance scheme.

Relying solely on M r. Turner’s affidavit, appellants next contend that they

“produced evidence from the City’s own employees that certain deficiencies in

rental property are allowed to continue, despite the failure of those deficiencies to

comply with current City Codes related to health and safety issues.” A plt. Br.

at 7. But nothing in that affidavit supports their point. The only portion of the

affidavit referencing any “evidence from the City’s ow n employees” concerns a

purported telephone conversation with an unidentified City employee on the day

M r. Turner’s residence was to be inspected. M r. Turner states that during the

conversation, he was never informed that the purpose of the inspection was to

assure his health and safety. W hether or not he was informed of the purpose

underlying the inspection simply has no bearing on whether the City’s ordinance

scheme is based on reasonable legislative or administrative standards or serves a

valid public interest, or whether there was probable cause to issue the warrant to

inspect M r. Turner’s residence.

3
M r. Turner’s opinion that his house had code violations is set forth in his
affidavit, the admissibility of which appellees question under Fed. R. Evid. 602.
Rule 602 mandates that testimony must be based on personal knowledge. W e
need not resolve this issue given our view that M r. Turner’s testimony on this
point is irrelevant.

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 Appellants’ remaining line of argument is that “although the City professes

concern for the health and safety of tenants,” it “has sought no warrants for

inspection of affected properties for several years’ time,” “does not know the

number of properties subject to the O rdinance scheme; where those properties are

located; or who occupies the properties,” and “[m]ost of the complaints under the

ordinance scheme arise from one city neighborhood, the Centennial

neighborhood.” A plt. Br. at 7-8. In support of this line of argument, appellants

broadly cite to entire deposition excerpts of the testimony of two defendant-City

employees comprising approximately twenty pages.

After scouring the entirety of these deposition transcripts, we see little

support for this line of argument other than an admission that defendant W althall

did not know the number of properties potentially subject to the ordinances, see

Aplt. App. at 54, and a concession that most complaints arise from the Centennial

neighborhood, see id. at 61. These admissions, even taken together with

appellants’ other unsupported arguments, show only that the City’s administration

of its regulatory scheme may be imperfect, not that there is a genuine issue of

material fact as to whether the scheme is grounded in reasonable legislative or

administrative standards or serves a valid public purpose, namely, protecting the

health, safety, and welfare of the general public and those that rent houses in RS

zoning districts. And appellants have pointed to no evidence supporting the

contention set out in the Pretrial Order, that the inspections of their residences

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were conducted “to cause [them] to abandon lawful use of the properties they

occupied” rather than for their health and safety. Aplee. Supp. App. at 136.

Accordingly, this claim presents no genuine issue of fact that precludes

summary judgment.

III.

The judgment of the district court is AFFIRMED.

Entered for the Court

Timothy M . Tymkovich
Circuit Judge

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