Artes-Roy v. City of Aspen, ARTES-RO

• Decision Date: 28 July 1994
• Docket Number: P,No. 93-1448,ARTES-RO,93-1448
• Citation: 31 F.3d 958
• Parties: Kristielaintiff-Appellant, v. ASPEN, (The) CITY OF, a Colorado municipal corporation; Gary Lyman, individually and in his official capacity as a Building Inspector for the City of Aspen, Colorado, and Pitkin County, Colorado and as CEO of the Aspen-Pitkin Regional Building Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 958

31 F.3d 958

29 Fed.R.Serv.3d 1339

Kristie ARTES-ROY, Plaintiff-Appellant, v. ASPEN, (The) CITY OF, a Colorado municipal corporation;

Gary Lyman, individually and in his official capacity as a

Building Inspector for the City of Aspen, Colorado, and

Pitkin County, Colorado and as CEO of the Aspen-Pitkin

Regional Building Department, Defendants-Appellees.

No. 93-1448.

United States Court of Appeals, Tenth Circuit.

July 28, 1994.

Rita M. Farry, Denver, CO, for plaintiff-appellant.

Daniel J. Torpy of Watson, Nathan & Bremer, Denver, CO, for defendants-appellees.

Before LOGAN, SETH, and BARRETT, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiff Kristie Artes-Roy appeals the district court's judgment granting defendants Gary Lyman and the City of Aspen summary judgment on plaintiff's claims asserted under 42 U.S.C. Sec. 1983. ¹ At issue are plaintiff's claims that defendant Lyman violated her First and Fourth Amendment rights by unlawfully entering her home, and that the City is liable because Lyman's actions were taken pursuant to the City's unconstitutional policy or practice and because the City failed to train its employees properly. ²

I

Plaintiff's husband obtained a building permit from the Aspen-Pitken Regional Building Department for renovations at the couple's home. When the building department staff noted that no one had called for any of the required inspections, although sufficient time had passed for much of the remodeling to be completed, one of the department's building inspectors went to plaintiff's home. When plaintiff failed to produce documentation of any inspections or a copy of the building plans as required by the building code, the inspector issued a stop work order.

Plaintiff's husband, who was out of the country at the time, telephoned defendant Lyman, the chief building inspector. The two men agreed to meet to discuss the stop work order when plaintiff's husband returned to Aspen in two weeks; in that discussion defendant Lyman was asked to stay away from the house because plaintiff was suffering from an anxiety disorder and was under a doctor's care.

Shortly thereafter, the building inspector who had issued the stop work order noted construction activity continuing at the home. He again informed plaintiff that all work had to stop, and reported to Lyman, his supervisor, that construction work ³ was continuing.

Lyman and the inspector then went to plaintiff's home where they informed several workers on the roof that they were violating the stop work order. Defendant Lyman then went to the door of the house. At this point factual discrepancies exist between plaintiff's deposition testimony describing crucial events at the front door of her home, and the testimony of Lyman and a police officer present at the house. Lyman's deposition testimony indicates that he spoke with plaintiff outside the home immediately upon his arrival, after she came out of the house to see what was happening. I App. 114. He stated that he informed her that he needed to speak to all the workers concerning the stop work order and that she went back into the house, before Lyman and the police officer knocked on the front door a second time. Id. at 114-15. In his deposition, Lyman testified that after knocking several times, cracking the door a little bit and yelling, a worker answered the door and motioned him into the home. He testified that he was barely inside the door and the other workmen's supervisor was present. Id. at 115-16.

Plaintiff, however, asserts that when she first discovered Lyman in her entryway, he was not accompanied by a police officer. II App. 333-34. She testified that she had no idea how Lyman entered the house; she also stated that there were no workers in the three or four rooms closest to the front door who could have let him in. Id. at 334. ⁴ According to plaintiff, Lyman told her at that time that a police officer was on his way to the house. Id. at 333. Plaintiff stated she then went to the back of the house to notify the workers that Lyman wanted to speak with them. Id. at 334-35. She then returned to the entryway and found Lyman was still there, this time accompanied by the police officer. Id. at 336. She asked Lyman and the officer to leave the house, and they did. Id.

The government's brief says Lyman entered only an "enclosed front porch." Appellee's Answer Brief at 4. Lyman testified in his deposition that he was "one step inside the door" of a "very small kind of entryway." I App. 117. Plaintiff testified in her deposition that she found Lyman in her "long living room," III App. 334, apparently near the front door, id. at 333.

It is undisputed that after the exchange between plaintiff and Lyman most of the workers went outside, where Lyman explained that they were working contrary to a stop work order and that they risked being cited if they continued. Lyman gave the workers forty minutes to pack up and leave before he began issuing citations. The workers took their tools and left.

A few days following these events, plaintiff alleges that she hurt her back while bending over to pick up a pencil, resulting in severe pain and physical discomfort. She attributes this injury to the stress caused by defendant's unlawful entry into her home to enforce the stop work order.

Apparently in the days following these events construction work at plaintiff's house continued. Within three weeks of the stop work order City officials instituted several civil and criminal court proceedings against plaintiff and her husband, and plaintiff and her husband filed this federal action against a number of defendants.

Summary judgment is appropriate only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We review a district court's summary judgment determination de novo, viewing the record in the light most favorable to the nonmoving party. ⁵ See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991).

II

Plaintiff alleged that Lyman violated her Fourth Amendment rights by entering her home without a warrant in order to enforce the stop work order. The district court found, inter alia, that "even if there had been a technical violation, its consequences were trivial and not of sufficient stature to rise above the de minimus [sic] level to invoke a constitutionally based remedy in this court." III App. 597.

The Supreme Court has held, in a case involving a city ordinance essentially identical to that before us, that a search of a residence without proper consent requires a valid search warrant. Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1730-31, 18 L.Ed.2d 930 (1967). The Court has often used broad language in describing rights under the Fourth Amendment. See, e.g., id. at 528, 87 S.Ct. at 1730 ("The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials."); Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949) ("The security of one's privacy against arbitrary intrusion by the police--which is at the core of the Fourth Amendment--is basic to a free society."), overruled on other grounds, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Nevertheless, the Fourth Amendment only prohibits unreasonable "searches and seizures." U.S. Const., Amend. IV.

In the instant case, even resolving all conflicts in the testimony in favor of plaintiff, there does not appear to be any search or seizure, thus no violation of the Fourth Amendment. For purposes of this appeal we assume Lyman himself pushed open the door to the premises and stepped into the entryway without any proper consent. Lyman was not on the premises to inspect for a violation of the building code; he and the inspector had already seen what they considered violations of the stop work order, from outside the premises. See Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974) (where health inspector entered "outside premises" to visually inspect chimney emissions no unreasonable search based on open fields doctrine). It seems clear Lyman did not intend to make any arrest on the premises. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (entry of private residence without a warrant to make arrest is Fourth Amendment violation). Lyman testified that he told plaintiff he needed to talk to the workmen, I App. 114; see also id. 116. Plaintiff testified that Lyman asked her to get the workmen out of the house. III App. 113-14. Lyman admitted that he intended to talk to the workmen, tell them of the stop work order, and if they continued to work "issue citations to each and every workman." I App. 116. To issue a citation, of course, is not to make an arrest. An arrest deprives "a person of his liberty by legal authority." Black's Law Dictionary 109-10 (6th ed. 1990); a citation is an order "to appear before a magistrate or judge at a later date," and avoids "having to take the suspect into immediate physical custody," id. at 243. Thus, Lyman did not enter plaintiff's home for either a search or a seizure.

We need not in this appeal determine whether an officer's warrantless entry without consent into a private residence can never violate the Fourth Amendment if the official intends no search or seizure. Regardless of Lyman's agreement to talk later to plaintiff's husband and being informed of plaintiff's delicate health, Lyman had a right to approach plaintiff's home to talk to her when he observed from the street workers violating the stop work order. Here plaintiff herself testified that she saw Lyman coming--"I saw somebody walking around to the front door ... I walked down to the living room ... and there he was," I App. 333-34. Other workers...