392 F.3d 73 (2nd Cir. 2004), 03-9038, Palmieri v. Lynch

Docket Nº:Docket No. 03-9038.
Citation:392 F.3d 73
Party Name:Paul PALMIERI, Plaintiff-Appellant, v. Pamela LYNCH, aka Pam Lynch, John Doe # 1, Defendants-Appellees.
Case Date:December 10, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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392 F.3d 73 (2nd Cir. 2004)

Paul PALMIERI, Plaintiff-Appellant,


Pamela LYNCH, aka Pam Lynch, John Doe # 1, Defendants-Appellees.

Docket No. 03-9038.

United States Court of Appeals, Second Circuit

December 10, 2004

Argued: June 23, 2004

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R. Bertil Peterson, Staff Counsel for The Coalition of Landlords, Homeowners & Merchants, Inc., Babylon, New York, for Plaintiff-Appellant.

Gregory J. Nolan, Assistant Attorney General, Environmental Protection Bureau, New York, N.Y. (Marion R. Buchbinder, Senior Assistant Solicitor General; Norman Spiegel, Assistant Attorney General, Environmental Protection Bureau; and Eliot Spitzer, Attorney General of the

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State of New York, on brief), for Defendants-Appellees.

Before: MINER, CABRANES and STRAUB, Circuit Judges.

Judge STRAUB concurs in part and dissents in part in a separate opinion.

MINER, Circuit Judge:

Plaintiff-appellant, Paul Palmieri, appeals from a judgment entered in the United States District Court for the Eastern District of New York (Seybert, J.), dismissing Palmieri's 42 U.S.C. §§ 1983 and 1985 claims, asserting Fourth Amendment violations, and declining to exercise supplemental jurisdiction over his state-law trespass claim. The court determined that the defendants-appellees, Pamela Lynch and John Doe # 1, 1 employees of the New York State Department of Environmental Conservation ("DEC"), did not violate Palmieri's Fourth Amendment rights by traversing, without permission, the front and backyard of Palmieri's residence in Babylon, New York in an attempt to perform a regulatory inspection. The areas to be inspected were a residential dock and adjacent areas located on tidal wetlands off the rear portion of Palmieri's back yards. The site visit by the DEC and the aborted regulatory inspection attempt occurred in response to Palmieri's application to extend his ninety-two-foot-long dock by an additional fifty feet and to add an additional boat lift to the two already in place.

Palmieri's claim is one essentially sounding in trespass quare clausum fregit that has escalated into a constitutional claim of Fourth Amendment violations only because the trespassers were representatives of a state government regulatory agency. The very brief, albeit trespassory, entry of these state actors was responsive to Palmieri's desire to obtain a necessary permit to conduct construction work on his property. That the agents were dispatched by Palmieri within minutes of their entry and that no damage was done might have justified the disposition of this case by application of the maxim de minimis non curat lex. Because of the constitutional issues raised, however, we are constrained to undertake the more elaborate analysis that follows.


Palmieri owns a parcel of residential waterfront property (the "property"), in Babylon, New York. The property is situated on Long Island's Great South Bay and encompasses both New York State regulated tidal wetlands and a regulated adjacent area. It is bordered on the front (or "north"), by East Shore Drive; on the back (or "south"), by the Great South Bay; and on each side ("east" and "west"), by neighboring residential properties that are similarly sized and situated. Palmieri's house (the "house") sits roughly in the center of the property. Stockade fencing extends along the east and west property lines of the property, separating it from his neighbors' lots physically, and, to a limited extent, visually. In addition, fencing extends from, and lies roughly perpendicular to, the sides of the house and connects to the fencing on the east and west property lines. Thus, this system of fences, along with the house itself, completely encloses the side and rear areas of the property physically on the north, east, and west sides. These areas include the backyard; a deck, connected to the back of the house and elevated approximately five to six above the backyard; and, bordering the property to the south, the bulkhead, dock, and waterfront. In the fence extending from the side of the house to the

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east property line is a gate (the "gate"), on which has been affixed a "PRIVATE PROPERTY--NO TRESPASSING" sign and a "BEWARE OF DOG" sign. The gate, which is typically kept closed but unlocked, provides physical access from the front of the property to the enclosed side and rear areas.

In March 1993, Palmieri submitted an application to the DEC for a tidal-wetland permit to extend his fifty-two-foot residential dock/pier (the "Dock") by an additional 110 feet into the Great South Bay, as well as to build two elevator boat lifts. This application was denied by the DEC in November 1993. After Palmieri filed an administrative appeal, the parties reached a settlement, pursuant to which the DEC issued a tidal-wetland permit to extend the Dock by forty feet and to build one additional boat lift. The permit contained a condition providing that the property that was the subject of the permit was "subject to inspection at reasonable hours and intervals by an authorized representative of the DEC to determine whether the permittee is complying with this permit" and the New York State Environmental Conservation Law ("ECL"). A permit for the installation of a fence on the bulkhead (i.e., the barrier between the beach front and the backyard areas), which was issued to Palmieri in January 1999, contained an identical condition.

Palmieri refused to grant the DEC physical access to his property to perform the inspections, and he notified the DEC of his refusal to allow such access by letters dated October 8, 1997, May 11, 1999, and January 19, 2000. Initially, the DEC complied with Palmieri's wishes, and its employees conducted inspections of the premises by boat without entering onto his property.

In May 1999, Palmieri submitted another application for a tidal-wetlands permit to extend his now ninety-two-foot-long Dock by an additional fifty feet and to add a third boat lift. In April 2000, Defendant-appellee Pamela Lynch, a DEC Marine Resource Specialist ("Specialist Lynch" or "Lynch"), was assigned to review Palmieri's application. Specialist Lynch's duties included making on-site inspections in connection with the review of applications for tidal-wetland permits. On March 10, 2000, Palmieri allegedly mailed a letter to Lynch restating his refusal to consent to a land-based inspection of the premises. 2

Nevertheless, on April 3, 2000, Specialist Lynch and another person from the DEC (referenced in the complaint as "John Doe # 1") visited the premises for the purpose of inspecting the Dock and the tidal wetlands in connection with the DEC's review of Palmieri's then-pending application. The purpose of the inspection was to determine whether the plans submitted in connection with the application accurately reflected current conditions, to examine the current condition of the tidal wetlands on and near the site, and to evaluate the possible impact of the proposed project on those wetlands.

Once Specialist Lynch arrived at Palmieri's property, she rang the front doorbell and knocked. Not hearing any response, Lynch walked around to the side of Palmieri's house to gain access to the Dock and the shorefront and adjoining areas of the premises. To reach those areas, Lynch entered Palmieri's enclosed rear yard through the closed gate bearing the "No Trespassing" and "Beware of Dog" signs. At that point, Palmieri, holding a video camera that was recording the scene on

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videotape, ran up to Specialist Lynch and asked who she was. Lynch showed Palmieri her DEC identification and told him that she had come to make an inspection in connection with his permit application. Palmieri then ordered her off his property, warning her that she was trespassing and that she would be arrested if she did not leave immediately. As he was physically escorting her off his property, Specialist Lynch explained that, if she could not complete her inspection, she could not complete her review of Palmieri's permit application. Specialist Lynch then left without further discussion. The entire encounter between Lynch and Palmieri lasted no more than three minutes.

In June 2000, Palmieri filed an action in the United States District Court for the Southern District of New York, pursuant to 42 U.S.C. §§ 1983 and 1985, against Lynch and "John Doe # 1," alleging a violation of Palmieri's Fourth Amendment rights, a conspiracy to violate his Fourth Amendment rights, and common law trespass. Specifically, Palmieri alleged that his Fourth Amendment right to be free from a warrantless search had been violated by Lynch's attempt to inspect the Dock by entering his property without his consent and that the entry also constituted a trespass. Shortly after Palmieri commenced this action, a DEC Permit Administrator advised Palmieri, by letter dated July 7, 2000, that his permit had been denied due to his failure to allow an inspection. Palmieri then requested an adjudicatory hearing on the denial of his permit application. In response, the DEC argued that its denial of the permit application should be affirmed without the need for an adjudicatory hearing, on the ground that Palmieri declined to consent to an on-site inspection.

While discovery continued in the District Court, an Administrative Law Judge ("ALJ") issued a decision recommending that the July 2000 Notice of Denial be vacated and replaced with a Notice of Incomplete Application in light of Palmieri's refusal to permit an inspection. The ALJ further recommended that Palmieri's request for a hearing be treated as void since such a request could not be made in response to a Notice of Incomplete Application. On February 1, 2002, the Commissioner of the DEC issued a ruling adopting the ALJ's recommendations. The Commissioner deemed...

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