Rainey & Harton v. Hartness

• Decision Date: 02 December 1999
• Docket Number: 99-529
• Citation: 5 S.W.3d 410
• Parties: Jerry RAINEY and James Harton v. James HARTNESS, In His Capacity as Wildlife Officer for Grant County 99-529 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

Jerry RAINEY and James Harton v James HARTNESS, In His Capacity as Wildlife Officer for Grant County

99-529 ___ S.W.3d ___

Opinion delivered December 2, 1999

Supreme Court of Arkansas

Appeal from Grant Circuit Court; Phillip H. Shirron, Judge; affirmed.

1. Judgment -- summary judgment -- when granted. -- Summary judgment may be granted when it is clear that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law; once the moving party has established a prima facie entitlement to summary judgment, the opposing party must discard the cloak of formal allegations and meet proof with proof by showing that an issue of fact exists.

2. Judgment -- summary judgment -- affirmed on issue of appellee's election as wildlife enforcement officer. -- Where appellants failed to meet proof with proof on the issue of the election of appellee as a wildlife enforcement officer by the Arkansas Game and Fish Commission, the supreme court affirmed the trial court's grant of summary judgment.

3. Appeal & error -- argument not made in trial court -- merits not reached on appeal. -- Where the abstract does not reflect that an argument was made in the trial court, we will not reach the merits of the argument on appeal.

4. Officers & public employees -- qualified immunity -- test. -- Generally, government officials performing discretionary functions are granted a qualified immunity from suit and are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known; courts evaluating a claim of immunity must determine whether the plaintiff has alleged the deprivation of an actual constitutional right and, if so, whether that right was clearly established at the time of the alleged violation; the issue of whether the official's conduct violated clearly established constitutional rights is a question of law that may be resolved by summary judgment.

5. Constitutional law -- Ark. Const. art. 2, § 15 -- interpreted in same manner as Fourth Amendment. -- Article 2, section 15, of the Arkansas Constitution is virtually identical to the Fourth Amendment; the Arkansas Supreme Court interprets it in the same manner as the United States Supreme Court interprets the Fourth Amendment.

6. Search & seizure -- "open fields" doctrine -- discussed. -- The United States Supreme Court has recognized that the protection afforded by the Fourth Amendment does not extend to open fields or lands; the Arkansas Supreme Court has also recognized the "open fields" doctrine; additionally, Ark. R. Crim. P. 14.2 provides that "[a]n officer may, without a search warrant, search open lands and seize things which he reasonably believes subject to seizure."

7. Search & seizure -- expectation of privacy -- object knowingly exposed to public. -- Within the meaning of the Fourth Amendment, a search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed; a person who knowingly exposes an object to the public cannot expect the protection from unreasonable search and seizure provided by the Fourth Amendment; even a property interest in premises may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises or activity conducted thereon.

8. Search & seizure -- expectation of privacy -- two-pronged test. -- When an expectation of privacy is claimed, the trial court must determine (1) whether the defendant has asserted or manifested a subjective expectation of privacy and (2) whether that expectation is objectively reasonable; although the first prong is a question of fact, the second is one of law; thus, even assuming that the defendant has proven a subjective expectation of privacy, in the final analysis, that expectation must be objectively reasonable.

9. Search & seizure -- trial court did not err in finding no legitimate expectation of privacy in deer stand. -- The supreme court concluded that the trial court did not err in finding that, as a matter of law, an appellant enjoyed no legitimate expectation of privacy in his deer stand where, among other things, the evidence showed that the stand was little more than a metal box in which persons standing were exposed to public view; that appellant did not use the stand to engage in private activity other than eating meals; and that appellant neither attempted to shield his activities from the public nor employed means of restricting access to the stand; where there was no evidence that the structure was inaccessible to other persons, there was a theoretical possibility that others would happen onto the stand, thus rendering any claimed expectation of privacy objectively unreasonable.

10. Search & seizure -- curtilage -- four factors. -- Curtilage questions should be resolved with reference to four factors: (1) the proximity of the area to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken to protect the area from observation by people passing by.

11. Search & seizure -- curtilage -- deer stand not part of. -- Where the evidence showed that an appellant's deer stand was approximately one-half mile away from temporary residences located on one appellant's property; where there was no evidence of a fence or other enclosure surrounding the temporary residences and the stand; where there was no evidence that the stand was used for the intimate activities of the home; and where one appellant did little, if anything, to restrict access to the stand by other persons, the stand was not within the curtilage of the temporary residences.

12. Officers & public employees -- federal civil-rights claims -- wildlife enforcement officer entitled to qualified immunity. -- The supreme court concluded that appellee wildlife enforcement officer was entitled to qualified immunity from appellants' federal civil-rights claims; appellee's conduct did not violate any clearly established constitutional rights possessed by appellants, who enjoyed no rights under the Fourth Amendment that would protect them from the officer's entry onto appellants' property and search of one appellant's deer stand; because appellee's search of the stand was legal under the Fourth Amendment, his seizure of a rifle as evidence was valid; under Ark. R. Crim. P. 10.2, a permissible object of seizure includes evidence of a criminal offense or other violation of the law; accordingly, seizure of the gun was not a "taking" proscribed by Ark. Const. art. 2, §§ 21 and 22.

13. Officers & public employees -- immunity -- scope of. -- Arkansas Code Annotated section 19-10-305 (Supp. 1999) provides that "[o]fficers and employees of the State of Arkansas are immune from liability from suit, except to the extent that they may be covered by liability insurance, for damages for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment"; the supreme court has interpreted that section to mean that state officers and employees acting without malice and within the course and scope of their employment are immune from an award of damages in litigation; the court has recognized that the immunity provided by section 19-10-305 is similar to that provided by the Supreme Court for federal civil-rights claims.

14. Officers & public employees -- immunity -- appellee immune from damages for state civil-rights & tort claims. -- Where the facts demonstrated that appellee wildlife enforcement officer was acting in the scope of his employment with the Game and Fish Commission at the time that he entered onto one appellant's land, and where appellants did not allege that appellee was covered by liability insurance or that he acted maliciously, appellee was immune from damages for the state-law civil-rights claims and also immune from the tort claim of damage to appellants' crops.

15. Appeal & error -- unsupported arguments not considered. -- The appellate court does not consider an assertion of error that is unsupported by convincing legal authority or argument, unless it is apparent without further research that the argument is well taken.

Bowden Law Firm, by: David O. Bowden, for appellants.

Mark Pryor, Att'y Gen., by: Patricia Van Ausdall Bell, Ass't Att'y Gen., for appellee.

Donald L. Corbin, Justice.

Appellants Jerry Rainey and James Harton filed a civil-rights suit in the Grant County Circuit Court against Appellee James Hartness, a wildlife enforcement officer with the Arkansas Game and Fish Commission. The suit alleged that Hartness (1) entered their property without authority; (2) seized Harton's rifle through an illegal search and converted it without due process of law and just compensation; and (3) damaged their crops by driving over them on a four-wheel, all-terrain vehicle. The trial court granted summary judgment to Hartness, and Appellants appealed. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a)(1) & (b)(3), as it presents issues of construction of both the United States and Arkansas Constitutions. We find no error and affirm.

Appellants' claims involve actions that occurred on the morning of October 21, 1995, during muzzle loading deer season. The record reflects that Appellants were engaged in hunting on wooded land owned by Rainey and leased by Harton. Appellants were situated at deer stands in different areas of the land. Hartness was patrolling the area that morning, when he noticed unattended vehicles on Rainey's property, leading him to believe that people were hunting there. Hartness rode his four-wheel vehicle onto the property, where he first encountered Rainey at his deer stand. When Hartness asked to see Rainey's hunting license, Rainey initially produced the license of someone...