WILLIAM M. CONLEY, District Judge.
Plaintiff Teresa Hestekin asserts that defendants unlawfully executed a search warrant in violation of her Fourth Amendment rights.
For all times relevant to plaintiff's complaint, plaintiff Teresa Hestekin operated a kennel, Hestekin Hills Animal Shelter & Pet Adoption Services, Inc., in the Town of Union, Eau Claire County, Wisconsin, and defendant Bekah Weitz served as that County's Humane Officer under Wis. Stat. § 173.03. In her capacity as Humane Officer, Weitz was an employee of the Eau Claire County Humane Association. The Eau Claire County Humane Association is a § 501(c)(3) non-profit IRS entity that provides animal welfare, care, adoption, education and other related services to the Eau Claire County area, and by contract, specifically to the County itself.
Defendants Jodi S. Bohl and Cynthia Mather are veterinarians. Both are licensed to practice veterinary medicine in the State of Wisconsin, and for all times relevant to plaintiff's complaint, both were
Finally, during the relevant period, defendant Fred Belay was the duly elected and acting Town Board Chairperson for the Town of Union. His duties included enforcing the Town's Animal Control Ordinance.
At some point in late 2012 or early 2013, Town of Union Chairperson Fred Belay requested the County's Humane Officer Bekah Weitz's assistance in enforcing the Town's Animal Control Ordinance with respect to Teresa Hestekin's kennel. Belay then sent a letter to Hestekin, dated January 23, 2013, informing Hestekin of a planned February 5 inspection.
Finding the conditions inside the facility to be substandard and dangerous to the health, well-being and safety of the dogs, cats and two Macaws that were found inside, Weitz conducted a follow-up investigation, including consulting with Drs. Bohl and Mather. Specifically, she asked Bohl and Mather to review a video taken during the February 5 special inspection warrant execution. After they both agreed that the conditions were unsafe and unhealthy for the animals, Weitz further consulted with Eau Claire County Assistant District Attorney Michael Steuer and Eau Claire County Sheriff's Department Sergeant Mike Mayer, both of whom advised her that they believed probable cause existed for a search warrant.
In keeping with this advice, Assistant D.A. Steuer then drafted a search warrant application dated April 3, 2013, which Sergeant Mayer signed. (Knight Aff., Ex. 1 (dkt. #25-1). An Eau Claire County Circuit Court judge granted that application and issued a search warrant on April 4, 2013, providing:
(Id., Ex. 2 (dkt. # 25-2) (all caps removed).)
The search warrant was executed at Hestekin's kennel that same day, April 4. Two deputies from the Eau Claire County Sheriff's Department Riewesthal and Behrandt accompanied Humane Officer Weitz. Other individuals present included a companion animal inspector with the Wisconsin Department of Agriculture, Trade and Consumer Protection, Town Chairperson
When they arrived at the kennel, deputies Riewesthal and Behrandt advised Hestekin that they possessed a search warrant, provided her with a copy of it and entered the premises with Hestekin. After the deputies cleared the property — including removing Hestekin and her family — and advised Weitz that it was secure, she and the other individuals then entered the property.
Ultimately, Weitz removed and took custody of thirteen dogs, five cats, two Macaws and a deceased dog. Dr. Bohl consulted on the removal of the cats and dogs, and Dr. Mather consulted on the removal of the Macaws. Eau Claire County Deputy Riewesthal also consulted on the removal of the animals.
Weitz and Deputy Riewesthal similarly met with Hestekin to inform her that the animals were being removed. Town Chairperson Belay maintains, and plaintiff does not dispute, that his role was limited to carrying garbage bags that were used to collect evidence and picking up and placing in those garbage bags items identified by Weitz and Dr. Bohl.
On November 19, 2013, the Eau Claire County District Attorney's Office filed a complaint charging Hestekin with (1) four felony counts of mistreatment of an animal and (2) four misdemeanor counts of negligently providing improper animal shelter and sanitation standards. On November 20, 2015, Eau Claire County Circuit Court Judge Lenz orally granted a motion to suppress evidence obtained in the execution of the April 4, 2013, search warrant. (Knight Aff., Ex. 6 (dkt. # 25-6).) The court subsequently issued written findings of facts and conclusions of law, supporting the earlier order on the motion to suppress. (Id., Ex. 7 (dkt. # 25-7).)
Judge Lenz found that "[t]he search warrant did not authorize the assistance of a Humane Officer or a veterinarian to accompany law enforcement on April 4, 2012," and
(Id. at p.2, ¶¶ 5-6.) Judge Lenz further found that "[t]he human officer and veterinarian conducted the search and seizure outside the presence of law enforcement." (Id. at p.2, ¶ 7.)
Relying on those findings and Wisconsin Chapter 173, the court concluded that the search was illegal, because it was not executed by a law enforcement officer, and as such, granted the motion to suppress the seized evidence. (Id. at p.2, ¶¶ 3-4.) Other portions of his opinion reference the United States Constitution, and specifically cases from other jurisdictions, holding that a search warrant executed without adequate law enforcement supervision violated the Fourth Amendment. (Id. at p.4, ¶¶ 14, 19.)
As the Eau Claire County's Humane Officer, Weitz advocated for the State of Wisconsin to pursue an appeal of Judge
Plaintiff Hestekin's only remaining claim is that the execution of the April 4, 2013, search warrant violated her Fourth Amendment rights. As best the court can discern, plaintiff's claim rests on a lack of law enforcement supervision of the search and seizure described by Judge Lenz in granting the motion to suppress the underlying criminal action. The parties dispute whether this holding in state court precludes defendants' assertions as to the constitutionality of their search in defending against plaintiff's Fourth Amendment claim in this 42 U.S.C. § 1983 lawsuit.
The determination of whether issue preclusion applies is governed by Wisconsin law. See Stephan v. Rocky Mountain Chocolate Factory, Inc., 136 F.3d 1134, 1136 (7th Cir. 1998) ("Because a Colorado court rendered the default judgment, Colorado law governs whether the judgment has issue-preclusive effect."); see also 28 U.S.C. § 1738 (full faith and credit statute). To determine whether issue preclusion applies, the court must first determine whether the issue was "actually litigated and determined by a valid and final judgment." First Weber Grp., Inc. v. Horsfall, 738 F.3d 767, 772-73 (7th Cir. 2013) (quoting Hlavinka v. Blunt, Ellis & Loewi, Inc., 174 Wis.2d 381, 497 N.W.2d 756, 762 (Ct. App. 1993)). Second, if that requirement is satisfied, then the court must consider whether "the determination is essential to the judgment." Id. And third, if that requirement is satisfied, then the court must consider whether it is "fundamentally fair" to apply issue preclusion. Id.
Here, Judge Lenz's ruling does not preclude defendants from challenging the constitutionality of the search under these factors. As an initial matter, his ruling did not rest on whether the search violated Hestekin's Fourth Amendment rights; rather, his decision rested on the requirements of a search under Wisconsin Chapter 173. Specifically, Judge Lenz relied upon the prohibition in Wis. Stat. § 173.07 that "a humane officer may not in the course of his or her duties ... "[e]xecute a search warrant" unless he or she is "also a law enforcement officer." Wis. Stat. § 173.07(5)(a). While Judge Lenz discussed cases from other jurisdictions that referred to constitutional rights, his ruling did not discuss the Fourth Amendment or, at the very least, did not suggest that a constitutional violation was "essential to [his] judgment." First Weber Grp., 738 F.3d at 772-73. Moreover, a finding of a state law violation does not give rise to a constitutional claim under § 1983. See Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003) (observing that "42 U.S.C. § 1983 protects plaintiffs from constitutional violations, not violations of state laws"). Finally, even if the constitutional issue was actually litigated and essential to the state court's judgment, it would be fundamentally unfair to preclude the defendants in this lawsuit from defending against the constitutional challenge based on Judge Lenz's decision on the motion to suppress evidence, particularly since unlike the plaintiff, none of the defendants were parties or even in control of the criminal prosecution in state court.
"Several factors may inform [this fundamental fairness] determination, including (1) whether the party could have obtained review of the judgment; (2) whether there have been changes in the law since the first action; (3) whether the claims in the two cases are `distinct'; (4)
As to the merits of that claim, plaintiff does not challenge to the validity of the search warrant itself; instead, plaintiff's claim turns on the reasonableness of its execution, as it did before Judge Lenz. "The reasonableness requirement [of the Fourth Amendment] extends to the manner in which the search is conducted." Johnson v. Manitowoc Cty., 635 F.3d 331, 335 (7th Cir. 2011) (citing Green v. Butler, 420 F.3d 689, 694-95 (7th Cir. 2005)). The test for reasonableness of the execution of a warrant is whether an officer's actions were objectively reasonable under the circumstances. See Los Angeles Cty., Cal. v. Rettle, 550 U.S. 609, 614, 127 S.Ct. 1989, 167 L.Ed.2d 974 (2007). It is "generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant." Dalia v. United States, 441 U.S. 238, 257, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979).
There is very little case law on this type of Fourth Amendment claim, and even more limited caselaw under the Fourth Amendment as to unreasonableness of a law enforcement officer's delegation of search duties to non-law enforcement officers. In an appeal from a jury verdict in another animal seizure case brought in this court, the Seventh Circuit at least recognized a Fourth Amendment claim based on the lack of adequate supervision, explaining:
Petkus v. Richland Cty., Wis., 767 F.3d 647, 652-53 (7th Cir. 2014).
However, plaintiff's claim here fails to fit the contours of Petkus or other, similar challenges to the reasonableness of the execution of a search warrant for two core reasons. First, plaintiff does not allege that the five individuals who entered her kennel, searched its premises, and seized animals caused any physical damage to her property. As described in Petkus,
Second, plaintiff's claim here is not brought against the law enforcement officers charged with proper execution of the search the warrant. Instead, her claims are against the non-law enforcement officers who were escorted onto the property to conduct the search under the apparent authority and supervision of Deputies Riewesthal and Behrandt. A claim under the Fourth Amendment for lack of adequate supervision has, therefore, generally depended on a challenge to the reasonableness of a law enforcement officer's actions, and, thus, any violation of the plaintiff's rights under the Fourth Amendment would appear to be grounded in the Deputies' alleged failure to supervise adequately any search or seizure conducted by the defendants in this case. Indeed, in Petkus and the other cases cited above, the Fourth Amendment claims were brought against the law enforcement officers based on their failure to supervise, not against the individuals conducting the search. This court could not identify any cases, and neither party directed the court to any cases, asserting Fourth Amendment claims against the individuals who conducted a search inadequately supervised or controlled by law enforcement officers.
On this record, he court is hard-pressed to discern what action by defendants under color of state law violated the Fourth Amendment, other than perhaps their apparent, objectively reasonable, if mistaken, belief that they were acting at the direction of a duly authorized law enforcement official to assist in conducting an orderly search for animals in obvious distress and seizure of the animals as appropriate. Said another way, if the defendants here conducted themselves in a manner that would not give rise to a claim against a law enforcement officer, as a reasonable trier of fact would appear compelled to find on this record, it is difficult to discern either injury or violation of the Constitution because the defendants were unquestionably better qualified to perform that function than the officers, and did so at the officers' direction, whether adequately supervised or not.
Perhaps this court would reach a different conclusion if any of the defendants had reason to doubt the officer's legal authority to conduct the search or delegate some portion of that authority to them, or having
For these reasons, plaintiff's Fourth Amendment claim likely fails as a matter of law, or at the very least under the doctrine of qualified immunity for lack of any law clearly establishing the illegality of these defendants' actions in reliance on the apparent authority to escort them on the property to conduct an orderly search. See Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 473 (7th Cir. 2011) ("The plaintiffs bear the burden of proving that the constitutional right was clearly established."). In their respective motions, defendants seek judgment in their favor on the basis that they are entitled to qualified immunity. "The doctrine of qualified immunity protects government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Whether a qualified immunity defense is available involves a two-part test to determine: (1) whether the facts alleged show defendants violated a constitutional right when viewed in the light most favorable to the party asserting the injury; and (2) whether those rights were clearly established at the time of the alleged violation. Board v. Farnham, 394 F.3d 469, 477 (7th Cir. 2005) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).
Here, even assuming that defendants' actions violated plaintiff's Fourth Amendment rights, plaintiff has failed to point to any caselaw or otherwise articulate any basis for finding that defendants' actions here — accompanying law enforcement to Hestekin's property and searching and seizing animals as provided under the terms of the state warrant, albeit arguably without adequate law enforcement supervision — would violate plaintiff's rights under the Fourth Amendment.
Accordingly, the court will grant judgment to defendants on plaintiff's sole remaining claim.
IT IS ORDERED that: