dissenting:
I respectfully believe the majority opinion elevates form over substance. Guided by the text of the Fourth Amendment, its purpose, and the time honored method of determining which warrantless searches and seizures are “reasonable” and which are not, I find no unreasonable search or seizure with respect to the warrantless entry after pre-abatement adversary hearings. Nor do I find any invasion of privacy. The lack of a case squarely on point blessing what happened here does not mean it cannot be proper: it only means that we must use analysis to decide this case, not round pegs and round holes. Moreover, the opinion raises problems with regard to the doctrine of qualified immunity.
The Search and Seizure
The majority opinion appears fixated on what the police did not have (a warrant) when it should be examining both what the City did and what the Conners received in terms of process before the second entry. Instead, the majority opinion contains a statement that I find extraordinary under the circumstances of this unusual case: “... [the second entry and seizure violated the Fourth Amendment] regardless of how ‘reasonable’ the warrantless search and seizure appeared in light of the extensive pre-seizure process afforded the Conners.” Majority opinion at p. 1490. This to me is tatamount to sweeping all the constitutional pieces off the chess board without following the rules of the contest. When you step back from the trees and look at the forest, it becomes clear that the values designed to be protected by the Fourth Amendment were undisturbed by what the city did — and how it did it — in this case. A warrant — and the process used to attain it — would have added nothing to the Conner’s privacy in the light of the equivalent substitute process they did receive, or to the independent review to which they were entitled.
I do not quarrel with a finding that the initial July 1, 1983 warrantless entry for the purpose of inspecting the alleged nuisance was improper and a violation of the constitutional right to be free of illegal searches and seizures. But with respect to the warrantless second entry on June 7, 1985, I agree with the district court’s reasoning, which was set forth in a thoughtful and informed Statement of Uncontroverted Facts and Conclusions of Law as follows:
8. As the [cjourt noted at the June 29, 1987 hearing, the legality of the June 7, 1985 entry is more problematic. At that point, pre-abatement hearings had been held and the vehicles had actually been found to be public nuisances. The officers and tow truck operators entered plaintiffs’ property solely to abate the previously declared nuisances. It is this crucial distinction between the first and second entries that troubled the [cjourt and caused it to require further briefing.
After thorough consideration of the issue, the [cjourt now determines that the July 7, 1985 entry to abate the nuisances did not violate plaintiffs’ constitutional rights.
As stated above, the [cjourt recognizes that citizens have a right to be free from unauthorized searches and seizures in their enclosed backyard. However, that does not mean that in a case where there has been notice, pre-abatement hearings, appeal procedures, and (under California law) the right to seek review in the [cjourt system, those rights of the plaintiffs are violated merely because a warrant was not obtained prior to the entry to carry out the order of abatement. An entry for the purpose of carrying out an abatement cannot be said to be unreasonable under these circumstances. Indeed, to require a warrant after all of the above procedures have taken place would impose untoward burdens upon local *1496governments as well as the courts. This does not mean that a court should set aside the Constitution whenever it interferes with what some would consider to be efficient governmental operations, but it is surely not reasonable to require a warrant to abate every nuisance (for example, weeds, trash and wrecked cars) where the citizens involved have already had a full and fair procedure wherein they had the opportunity to contest the need and propriety of the abatement in their specific case.
Cases that deal with an entry to determine whether a nuisance exists on the property, e.g., Gleaves v. Waters, 175 Cal.App.3d 413, 220 Cal.Rptr. 621 (1985), are not the same as this one. To allow entries into backyards for the purpose of inspecting the premises to find nuisances would effectively repeal the protections of the Fourth Amendment. However, that is not the situation where, as here, the presence of the nuisance is known, and has actually been determined in hearings that gave the citizen the full right to protect his interests and the opportunity to voluntarily abate the nuisance.
Therefore, the [cjourt determines that when the public officials entered the plaintiffs’ backyard to abate a known, visible, nuisance after first conducting the extensive pre-abatement procedure used here, they did not commit an illegal search and seizure. Again, it should be clear that this decision is not intended to indicate there is no Fourth Amendment protection in one’s enclosed backyard. Nor does the [cjourt decide that it would be proper to forceably enter a house to abate what might be a nuisance located within the actual confines of the house. The [cjourt only holds that the entry in this case did not violate the Fourth Amendment. Therefore, summary judgment should be, and is GRANTED for defendants on that issue.
An illegal search within the meaning of the Fourth Amendment occurs whenever one’s reasonable expectation of privacy is violated by unreasonable governmental intrusion. Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967). As was stated by the Supreme Court, the “basic purpose of this Amendment ... is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967) (emphasis added).
The reasons justifying a determination that the first entry violated the Fourth Amendment — reasonable expectations of privacy — do not appear to apply to the second entry and seizure. At the time of the second entry, there had been two years of notice, two pre-abatement hearings, appeal procedures, and the right to seek review in the state court system. At each step of the way, it was determined that a nuisance indeed existed, and that it was to be abated.
The second entry onto the Conners’ property for the specific purpose of abating the nuisance was, in my view, neither unreasonable nor arbitrary. The Conners, or any other reasonable person, had to have seen it coming: the handwriting was on the wall. Regardless of what the Conners’ subjective expectations may have been at that point, no reasonable privacy interests can be said to have remained. See Michigan v. Clifford, 464 U.S. 287, 292, 104 S.Ct. 641, 646, 78 L.Ed.2d 477 (1984) (“The test essentially is an objective one”).
The majority opinion seems to imply that a judicial warrant is required whenever an entry is made to abate an established nuisance irrespective of the underlying circumstances. Despite intensive research, I have been unable to uncover a case, state or federal, that supports directly that proposition. Dicta in Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) on which the proposed opinion largely relies, certainly is not supportive of the proposition. See Id. at 504, 98 S.Ct. at 1947 (“Their purpose may be to locate and abate a suspected public nuisance....”) (emphasis added).
Indeed, California itself recognizes that a warrant is not necessarily required whenever governmental officials engage in the abatement of a nuisance:
We do not mean to suggest or imply that the warrant requirement extends to all entries onto private property for nuisance abatement purposes, only those *1497which infringe upon constitutionally recognized expectations of privacy.
Gleaves v. Waters, 175 Cal.App.3d 413, 220 Cal.Rptr. 621, 625 (1985).
The view that, irrespective of the extensiveness of due process accorded people similarly situated to the Conners, a judicial authorization must be obtained prior to the enforcement of a City Council’s nuisance determination does not appear to be sound. To begin with, under the exercise of its police power, “a local legislative body may enact and enforce police ordinances to regulate or prohibit a thing or act of such nature that it may become a nuisance or may be injurious if not regulated or abated.” Rhyne, The Law of Local Government Operations § 19.27, at 472 (1980); see also Sullivan v. Los Angeles Dept. of Bldg. & Safety, 116 Cal.App.2d 807, 254 P.2d 590, 592 (1953) (“the exercise of the police power is not limited to the regulation of such things as have already become nuisances or have been declared to be such by the judgment of a court”).
Secondly, I tend to agree with the district judge that requiring judicial authorization of an abatement determination “would impose untoward burdens upon local governments as well as the courts.” See Shadwick v. City of Tampa, 407 U.S. 345, 353, 92 S.Ct. 2119, 2124, 32 L.Ed.2d 783 (1972) (“Communities may have sound reasons for delegating the responsibility of issuing warrants to competent personnel other than judges or lawyers”).
Third, in the Fourth Amendment context, the purpose of review by a “judicial officer” prior to issuance of a warrant is to “insure that the deliberate, impartial judgment of a judicial officer will be .interposed between the citizen and the police, to assess the weight and credibility of the information which the complaining officer adduces as probable cause.” Wong Sun v. United States, 371 U.S. 471, 481-82, 83 S.Ct. 407, 413-14, 9 L.Ed.2d 441 (1963). There is nothing in the record to suggest that the city council — which is part of the legislative, not executive, branch of government — was anything but competent, impartial, neutral and detached. The hearings before the city council most assuredly constituted an adequate buffer between the municipal police officers and the Conners. For all practical purposes, the conclusion that a nuisance existed in violation of municipal law, and was therefore subject to abatement pursuant to the governmental power of the municipality, was “judicially” determined. Moreover, an application for a search warrant is ex parte. The subject is never asked for his side of the story. In this sense, the Conners enjoyed an opportunity not available to the usual “suspect.” As I stated at the outset, I am concerned that the majority’s opinion elevates form over substance.
Qualified Immunity
I can agree with the majority opinion that the grant of qualified immunity as to the initial entry was erroneous. The mere absence of a provision in the municipal code requiring a warrant for inspecting suspected nuisances does not necessarily mean that the failure to obtain one was objectively reasonable, particularly in light of Tyler. See Gleaves v. Waters, 220 Cal.Rptr. at 625 (“The constitutional requirement of a warrant is not of course dependent upon the enactment by the legislature of an implementary procedure”).
Even assuming, however, that the second entry and seizure violated the warrant requirement of the Fourth Amendment, I cannot find the individual qualifying defendants not entitled to qualified immunity. In the absence of specific ease law on the subject, it seems wholly inappropriate to hold that a warrant requirement under the unusual circumstances of the second entry was “clearly established.” Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Anderson explained this doctrine as follows:
When government official abuse their offices, “action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees.” Harlow v. Fitzgerald, 457 U.S., at 814 [457 U.S. 800, 102 S.Ct. 2727, at 2736, 73 L.Ed.2d 396 (1982) ]. On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of per*1498sonal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties. Ibid. Our eases have accommodated these conflicting concerns by generally providing government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonable have been thought consistent with the rights they are alleged to have violated. Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the “objective legal reasonableness” of the action, Harlow, 457 U.S., at 819 [102 S.Ct. at 2739], assessed in light of the legal rules that were “clearly established” at the time it was taken, id., at 818 [102 S.Ct. at 2788].
The operation of this standard, however, depends substantially upon the level of generality at which the relevant “legal rule” is to be identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of “clearly established law” were to be applied at this level of generality, it would bear no relationship to the “objective legal reasonableness” that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights. Harlow would be transformed from a guarantee of immunity into a rule of pleading. Such an approach, in sum, would destroy “the balance that our cases strike between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties,” by making it impossible for officials “reasonably [to] anticipate when their conduct may give rise to liability for damages.” Davis, supra at 195 [Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984) ]..-.. 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 pre-existing law the unlawfulness must be apparent.
483 U.S. at 638-40, 107 S.Ct. at 3038-39 (citations omitted) (footnote omitted) (emphasis added).
The Supreme Court calls upon us in Davis v. Scherer, 468 U.S. 183, 196, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984), to recognize the demands of the real world in measuring activity by members of the executive branch:
Nor is it always fair, or sound policy, to demand official compliance with statute and regulation on pain of money damages. Such officials as police officers or prison wardens, to say nothing of higher level executives who enjoy only qualified immunity, routinely make close decisions in the exercise of the broad authority that necessarily is delegated to them. These officials are subject to a plethora of rules, “often so voluminous, ambiguous, and contradictory, and in such flux that officials can only comply with or enforce them selectively.” See P. Schuck, Suing Government 66 (1983). In these circumstances, officials should not err always on the side of caution. “[Ojfficials with a broad range of duties and authority must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office.”
Today we fail to give that message due consideration. Instead, we subject officials to a trial under circumstances where four federal judges disagree as to whether what they did violated the Constitution, and we do so in an area of the law that has not been squarely addressed by this circuit. How we can say that the law they violated was “clearly established” at a particularized level escapes me.
I respectfully DISSENT.