Posted by: Patricia Salkin | January 19, 2021

Tenth Circuit Holds No “Search” Occurred for Purposes of the Fourth Amendment

This post was authored by Matthew Loescher, Esq.

Plaintiff Eric Clark, a resident of the City of Williamsburg, Kansas, filed this action claiming that the City’s attempted enforcement of its sign ordinance against him violated his First Amendment rights, and that the City’s code enforcement officer violated his Fourth Amendment rights by walking onto his property and attempting to speak with him. The district court granted partial summary judgment in favor of Clark on his First Amendment claim, but granted summary judgment in favor of the City on Clark’s Fourth Amendment claim. The First Amendment claim proceeded to a jury trial on the issue of damages, after which the the jury awarded Clark one dollar in nominal damages. In this case, Clark appealed the district court’s summary judgment rulings in favor of the City on his First and Fourth Amendment claims.

Clark first argued on appeal that the entirety of the City’s sign ordinance should have been addressed and declared unconstitutional, but failed to provide evidence that could establish that he was personally impacted by the application of any of the other provisions of the ordinance. Specifically, there was no evidence that any City officer found that the signs posted on Clark’s property were in violation of any of the other provisions of the City’s sign ordinance, or that any City officer ever pursued removal of such signs by issuing written notice to Clark pursuant to the procedures outlined in the City’s sign ordinance. The court therefore upheld the district court’s holding that Clark lacked standing to challenge any provision other than Article 8, § 4.A.(6).

The district court granted partial summary judgment in favor of Clark on his First Amendment claim, finding that Article 8, § 4.A.(6) of the City’s sign ordinance was a content-based regulation that did not pass strict scrutiny. On appeal, Clark contended that the district court erred in concluding that severing Article 8, § 4.A.(6), would cure the unconstitutionality of the entire ordinance. However, as the court found that Clark lacked standing to challenge any part of the City’s sign ordinance other than Article 8, § 4.A.(6), it held that it was unnecessary to address those arguments.

Clark lastly challenged the district court’s grant of summary judgment in favor of the City with respect to Clark’s Fourth Amendment claim. Here, it was undisputed that De La Torre entered Clark’s property with the sole intention of speaking with Clark and attempting to resolve the alleged violations. While De La Torre asked to speak with Clark, Clark responded immediately by yelling at De La Torre to leave, which he did. As no “search” occurred for purposes of the Fourth Amendment, the judgment of the district court was affirmed.

Clark v City of Williamsburg, 2021 WL 130477 (10th Cir. CA 1/14/2021)


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