Posted by: Patricia Salkin | November 8, 2014

Fed. Dist. Court in NY Finds in Section 1983 Case That Removal of “Litter” from Plaintiff’s Yard May Implicate the Fourth Amendment and Procedural Due Process

Individuals acting at the direction of the Town of East Hampton (the “Town”) entered plaintiff Thomas Ferreira’s (“plaintiff” or “Ferreira”) property located at 63 Navy Road in Montauk, New York (the “Property”) and removed many unregistered and inoperative vehicles, tools, and other items. The individuals were acting pursuant to two resolutions passed by the Town Board directing the removal of “litter,” as that term is defined by Chapter 167 of the Town Code, from the Property. Plaintiff then brought this action against the Town and individual defendants, in their official and individual capacities. Ferreira asserted the following constitutional claims pursuant to 42 U.S.C. § 1983: 1) the Town resolutions were unconstitutional bills of attainder; 2) he was deprived of his property without due process of law; 3) he was subjected to unreasonable searches and seizures, in violation of the Fourth Amendment; 4) the deprivation of his property constituted a violation of his substantive due process rights; and 5) he was treated differently from others similarly situated to himself, in violation of the Equal Protection Clause of the Fourteenth Amendment.

With respect to the existence vel non of punishment in the bill of attainder, the Second Circuit has identified the following three factors to consider: 1) whether the challenged statute falls within the historical meaning of legislative punishment (historical test of punishment); 2) whether the statute, “viewed in terms of the type of severity of burdens imposed, reasonably can be said to further non-punitive legislative purposes” (functional test of punishment); 3) whether the legislative record “evinces a [legislative] intent to punish” (motivational test of punishment). ACORN v. United States, 618 F.3d 125, 136 (2d Cir.2010). Because Plaintiff failed to come forward with evidence reflecting overwhelmingly a clear legislative intent to punish, the court held that the Town Board resolutions were not unlawful bills of attainder, and granted summary judgment to all defendants on this claim.

As to the due process claim, it was uncontroverted that the Town and its officials knew about the conditions on the Property for years before taking action in the summer of 2009. The court noted that the existence of a significant delay between recognition of a supposed emergency and the act to remedy that condition could, inter alia, support a reasonable finding that the Town officials acted arbitrarily in declaring the conditions on the Property to be an immediate danger to the public. The procedural due process claim therefore survived summary judgment.

The court then addressed the Fourth Amendment claim and determined that although the Court concluded that a warrant is not required to abate a public nuisance, the seizure of property considered to be a public nuisance, as well as the entry onto private property to accomplish that seizure, must still be reasonable to comply with the Fourth Amendment. Here, plaintiff testified that the Town’s agents removed items that were clearly not “litter” or a public nuisance, such as his tools. Therefore, there was a genuine dispute as to material facts bearing on whether the searches and seizures were effectuated in an unreasonable manner, in violation of the Fourth Amendment, making summary judgment unwarranted. Because the plaintiff’s substantive due process claim was included in this claim, however, it was dismissed.

The equal protection claim was also dismissed because the only evidence offered by plaintiff are pictures purporting to show that the Town tacitly condones the presence of vehicles outdoors on these properties for long periods of time; however, there are several crucial differences between those properties and plaintiff’s, and due to this the plaintiff failed to show any evidence of similarly situated people.

Finally, the court addressed whether any immunities attached to the defendants. Although, plaintiff’s procedural due process and Fourth Amendment claims survived summary judgment, these claims survived only against the Town because defendants Prince, Hammerle, Loewen, McGintee, and Mansir were entitled to absolute legislative immunity from liability on these claims, and defendants Narvilas, Jilnicki, Schirrippa, Glogg, and Grenci were entitled to qualified immunity.

Ferreira v Town of East Hampton, 2014 WL 5637882 (EDNY 11/4/2014)

The opinion can be accessed at:

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