FIFTH CIRCUIT EXAMINES WHETHER TAX APPRAISERS VIOLATED THE FOURTH AMENDMENT
by Brian S. Batterton, Attorney
©2016 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
On May 6, 2016, the Fifth Circuit Court of Appeals decided King v. Handorf [i], which serves as instructive concerning the law pertaining to whether certain activities of tax appraisers constitute Fourth Amendment violations. The relevant facts of King, taken directly from the case, are as follows:
Cary and Melba King own two properties in LaSalle Parish, Louisiana, that include residential homes, a chicken farm, an office, a workshop, and a pool house. Apparently, the properties are across a road from each other. In 2010, the Kings were notified that their properties were subject to a 59% and 44% ad valorem tax increase due to a reassessment by the LaSalle Parish Tax Assessor's Office. The Kings appealed to the Board of Review for Tax Assessments, which reduced the increases. Aron Johnson, the LaSalle Parish Tax Assessor, appealed that decision to the Tax Commission, which then reinstated the initial increase.
After the Board of Review reduced the increase but before the Tax Commission reinstated it, the Tax Commission sent two of its employees, Bill Johnson and Lloyd Handorf, to the Kings' properties. Melba knew the Commission would be sending appraisers. Sometime in late 2011, Handorf and Johnson appeared at the Kings' properties. They knocked on the door to the office on one of the properties. Melba answered and the assessors identified themselves as employees from the Tax Commission there to do an appraisal. Melba offered to accompany them on a tour of her property, but they declined her offer. She placed no limits on their access, and, as she testified in a deposition, "offered to go with them, to walk with them."
During the appraisal, the assessors walked around the property and viewed or measured several items, including a workshop that Melba argues was not under the tax protest. Melba also requested that the assessors evaluate several items, such as two breakages in the wall to her house. Melba testified the appraisal took approximately one hour. The appraisers never entered the Kings' house. Toward the end of the appraisal, Melba claims she saw Handorf "put his hands to either side of his face," as if cupping his eyes to shield them from light, and peer into the bathroom and kitchen of her house through the glass. Melba did not like the visual intrusion, saw also that the appraisers were measuring the workshop, and decided to order them to leave. After a brief argument, the assessors left. Thereafter, Melba noticed the door to the pool house was ajar. She inferred the assessors must have opened the door because the door is usually closed. [ii]
The Kings filed suit and alleged that Handorf violated his Fourth Amendment rights when he looked in the window to the house and allegedly opened the door to the pool house. Handorf filed a motion for summary judgment and qualified immunity and the district court denied the motion. Handorf then appealed the denial of his motion for summary judgment and qualified immunity to the Fifth Circuit Court of Appeals.
First, the court noted the standard for summary judgment and qualified immunity. Summary judgment is appropriate when the court examines the facts, in a light most favorable to the plaintiff’s version of events, and determines that the government official(s) did not violate a federal statutory or constitutional right. If the court determines that the government officials did violate the plaintiff’s rights, then the court examines whether the law was clearly established at the time of the violation such that another reasonable government official in the same situation, would have known he was violating the plaintiff’s rights. Clearly established law is case law from the United States Supreme Court, the Fifth Circuit Court of Appeals (in this case) or the highest court of the state where the incident occurred. If the law is not clearly established by case law such that it puts a reasonable government official on notice regarding his conduct, the official is entitled to qualified immunity from suit and the case is dismissed. If the law is clearly established, the case moves to trial for a jury to decide the case on the merits. It is also important to note that the court can skip the summary judgment analysis (the determination of whether the official violated the law) and move directly to the qualified immunity analysis (whether the law was clearly established).
The court then noted that in this case, Handorf had sought, and received, consent from the Kings to conduct the appraisal. Thus, the issue before the court was whether Handorf exceeded the scope of the Kings consent in how he conducted the appraisal (looking in the window and allegedly opening the door of the pool house).
The court next set out to determine whether the law was clearly established such that Handorf should have known he was violating the Fourth Amendment. Particularly, whether Handorf violated the Fourth Amendment in how he conducted the inspection of the property for the appraisal.
In searching court precedent for guidance, the court noted that there was no case law from the Supreme Court, Fifth Circuit Court of Appeals or highest court of the state regarding the actions a tax appraiser may take when conducting an assessment. As such, the court examined precedent from other federal circuits that concern similar type of government action. The court stated:
[T]he Sixth Circuit held that a tax assessor who intruded onto the curtilage of a home had not conducted a search. Widgren v. Maple Grove Twp., 429 F.3d 575, 585-86 (6th Cir. 2005). There, the assessor walked onto the property, passed "no trespassing" signs, then intruded on the curtilage while conducting a consent-less assessment. Id. at 581-82. The Sixth Circuit, while recognizing the intrusion on the curtilage was ill-advised, nonetheless determined it was not a search because the assessor relied on "naked-eye observations unaided by technological enhancements," "did not touch, enter, or look into the house," was there solely for a tax assessment and not for any "dirty business," and undertook an "administrative [instead of a criminal] investigation." Id. at 581-86. Consequently, the assessor's actions were not "unduly intrusive," even though he entered onto the curtilage, in light of the reasons he was there for and the methods used in his investigation. Id. at 585. [iii]
The court noted that a difference between the above case and Handorf is that Handorf allegedly opened the door to the pool house and looked through a window. However, the court also noted that Handorf had received consent to be on the property for the appraisal, whereas the tax appraiser in the above case did not receive consent.
Next, the court examined another Sixth Circuit case. Discussing the second case, the Fifth Circuit stated:
In another case, the Sixth Circuit again held that no search took place. Taylor v. Mich. Dep't of Nat. Res., 502 F.3d 452 (6th Cir. 2007). In Taylor, a conservation officer saw tracks leading up to a house and was concerned there might be a trespasser. Id. at 454. He went up to the house, which was unoccupied, passed two "No Trespassing" signs, "peered into the windows of the home and garage, shielding his eyes from the daytime sun with cupped hands, and . . . rattled the doorknobs of the home and garage." Id. The Sixth Circuit again found it relevant that the officer used "limited methods of observation" and that "the purpose of his conduct . . . [was] protective" instead of "investigat[ing] suspected wrongdoing." Id. at 456-57. [iv]
The court discussed that, in the above case, the conservation officer entered curtilage, shook door knobs, looked in windows, and lacked consent of the homeowner, yet still the Sixth Circuit held that no Fourth Amendment violation occurred, noting that the purpose was protective rather than investigative.
Lastly, the court examined a case from the Fourth Circuit where a Fourth Amendment violation did occur. The Fifth Circuit stated that, in Covey v. Assessor of Ohio Cty. [v],
[A] West Virginia tax assessor went to a home despite that no-trespassing signs were posted and the owners were absent; he found marijuana and reported the drugs to police. Id. at 190. While the homeowners in Widgren and Taylor also posted signs that were ignored by the officials, those decisions did not discuss law comparable to that in West Virginia, which provides that an assessor cannot ignore no-trespassing signs. Id. at 194-95. Moreover, the assessor in Covey physically entered the home. Id. at 195. [vi]
The most significant distinguishing factor between the above case and Handorf was the state law that prohibited assessors for ignoring “no trespassing” signs, whereas there was no such law in Louisiana. Further, in the above case, the assessor physically entered the home and Handorf did not enter the Kings home.
After a review of the law above, the Fifth Circuit held that the law was not clearly established that what Handorf did was a violation of the Kings Fourth Amendment rights.
As such, the Fifth Circuit reversed the district court’s denial of qualified immunity.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 15-30630 (6th Cir. Decided May 6, 2016)
[ii] Id. at 1-3
[iii] Id. at 6-7
[iv] Id. at 7
[v] 777 F.3d 186 (4th Cir. 2015)
[vi] Handorf at 7-8