Posted by: Patricia Salkin | August 16, 2017

Third Circuit Court of Appeals Finds Owner’s Allegation that Ordinance Could Permit Township to Search Curtilage of Her Home was Insufficient to Establish Constitutional Standing to Challenge Ordinance Regulating Cemeteries

The Township of Scott in Lackawanna County, Pennsylvania enacted an ordinance regulating cemeteries, and authorizing officials to enter any property within the Township to determine the existence and location of any cemetery. The ordinance also required property owners to hold their private cemeteries open to the public during daylight hours. Plaintiff, Rose Mary Knick, brought a § 1983 action against the township, alleging that ordinance violated her Fourth and Fifth Amendment rights. The District Court dismissed her Fourth Amendment facial challenge and required her to exhaust state-law remedies for her takings claims.

As to the Fourth Amendment claim, the court found even if Township officials were likely to return to the same part of Knick’s property for further inspections, those inspections would also be open-field searches not subject to Fourth Amendment protection. Furthermore, nothing in the record suggested that any future inspections would invade her home’s curtilage. As a result, the court found any “injury” arising from open-field searches would not be legally protected. As to her takings claims, the court determined that Knick’s state-court action only sought declaratory and injunctive relief, not compensation. Accordingly, Knick could not have “been denied compensation” as part of that action.

While the court recognized that the Ordinance’s inspection provision was constitutionally suspect and encouraged the Township to abandon or modify it substantially, it nevertheless affirmed the District Court’s order dismissing the takings claims without prejudice pending exhaustion of state-law compensation remedies.

Knick v Township of Scott, 862 F.3d 310 (3rd Cir. CA 7/6/2017)

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