The Volokh Conspiracy

The Fourth Circuit decided a Fourth Amendment case on Friday that strikes me as very weird. The case is Presley v. City of Chartlottesville.

  Facts, as alleged in the complaint: Charlottesville, Virginia published a map incorrectly showing a public trail through the plaintiff's property. Plaintiff complained, but the city didn't change the map. Random hikers ended up walking through plaintiff's property because they thought it was public, and they ended up leaving behind trash and making a mess. This caused plaintiff a lot of stress and annoyance. The city offered plaintiff some tax breaks in exchange for an easement that would allow people to come on the property, but the plaintiff refused. She ended up putting lots of "no trespassing" signs on her property, but they were torn down. When plaintiff put up razor wire to try to keep the hikers away, she was prosecuted for it by the city (the prosecution was dismissed). Plaintiff called the police a lot when trespassers would arrive, and the police often came, but that didn't stem the tide. Plaintiff eventually sued the city on the ground that the city violated her Fourth Amendment rights.

  Holding, in an opinion by Judge Motz joined by Judge Shedd: The random hikers who walked through plaintiff's property are state actors who "seized" the plaintiff's property under the Fourth Amendment. They are state actors because they were following the government's map. Further, they "seized" the property under the Fourth Amendment because they interfered with plaintiff's property and the plaintiff felt deprived of her property with so many people on it.

  My two cents: This seems strange to me. First, I don't think there was a seizure of property under the Fourth Amendment (even if there was a taking under the Fifth). A Fourth Amendment seizure occurs when a state actor keeps a private party out of his property, as in Illinois v. McArthur. But surely a trespass itself isn't a seizure: the Supreme Court has always treated trespasses as searches, not seizures, and has developed the open fields doctrine in cases like Oliver v. United States and United States v. Dunn to determine when a trespass triggers the Fourth Amendment. Under the open fields doctrine, trespasses aren't searches unless they extend to the curtilage of the home; it sounds like the trail was far from the home, and thus was no search. Given the open fields doctrine, it would be rather remarkable if the same trespasses were a seizure. I gather that the claim in the complaint was that there were so many trespassers that plaintiff didn't feel comfortable using her land, but that doesn't sound like a Fourth Amendment claim to me.

  [UPDATE: A reader points out that in footnote 3 the court says that the curtilage question is unresolved because it wasn't settled by the complaint. I gather this means that the court is collapsing the separate search and seizure inquiries into some sort of combined test, and thus will somehow incorporate the Fourth Amendment search rules into a seizure analysis. I've never seen this done before, but it will at least make this part of the opinion less strange.]

  Second, it seems jarring to me that the trespassers were state actors. Most circuits have looked to three factors to answer this question: whether the government knows of or acquiesces in the intrusive conduct; whether the party performing the search intends to assist law enforcement efforts at the time of the search; and whether the government affirmatively encourages, initiates or instigates the private action. And they have all held, as has the Fourth Circuit, that mere knowledge isn't enough. Here, it seems to me that this is case of mere knowledge: the city made a map and didn't correct it, causing people to go on to the land, and they knew that this was happening. (There's an interesting question as to whether knowledge means knowledge that this kind of thing was generally happening or knowledge that it was happening in a specific case with a specific hiker, but let's bracket that for now.) But as I read the facts, the city didn't actually want people to go on to the land: when the plaintiff would call the police, they would come and keep the hikers off. And the private parties out for a nice Sunday hike clearly didn't have intent to assist law enforcement. The opinion states in footnote 7 that this is not a mere knowledge case because the government was "more heavily involved" than in the typical case, but it's unclear to me what this means and the Fourth Circuit doesn't seem to provide any analysis of the question.

  To be clear, these facts may be actionable on another theory, such as the Fifth Amendment's takings clause. But they don't sound like a Fourth Amendment violation to me.

  Thanks to reader Johnny Utah for the link.