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10th Circuit Asked to Revive Case Against Officer Who Used Back Door

A Kansas man asked a federal appeals court Wednesday to reinstate his Fourth Amendment claim against a code enforcement officer who walked into his backyard looking for him.

DENVER (CN) — A Kansas man asked a federal appeals court Wednesday to reinstate his Fourth Amendment claim against a code enforcement officer who walked into his backyard looking for him.

Williamsburg code enforcement officer Tony De La Torre walked around the side of Eric Clark’s house on March 16, 2015, looking to speak with him about his roadside signs which violated the city’s code.

Though the encounter lasted less than five minutes, Clark sued the city in 2017 for enforcing an illegal sign rule and improperly searching his property by not knocking at the front door first.

Representing himself in the District Court of Kansas last year, Clark won a judgment against the city for wrongly banning First Amendment-protected political signs. But U.S. District Judge Holly Teeter, a Donald Trump appointee, threw out Clark’s Fourth Amendment claims before the trial.

According to the city, De La Torre bypassed the front door because it was blocked by a dead bush, a chair and a mattress.

In his brief to the Denver-based 10th Circuit, Clark contended the officer’s action “clearly indicates that a warrantless search occurred.”

Hearing someone in the back of the house does not give them permission to go there, the brief states, posing the question: “What if that incident of ‘hearing someone’ was your young daughters chatting while sunning in the nude by the backyard pool?”

Chief U.S. Circuit Judge Timothy Tymkovich put Clark’s argument to another test on Wednesday in the 10th Circuit hearing.

“What do you think a reasonable trick-or-treater would have done approaching that porch?” the George W. Bush appointee asked.

Attorney Alan Johnson of the Topeka firm Sloan Eisenbarth Glassman McEntire & Jarboe represented Clark on appeal.

“If it was a brave trick-or-treater, they would have gone to the front porch,” Johnson insisted. “The back door could not be seen from any publicly accessible place.”

Johnson said the fact that there was a question of which door a reasonable visitor would knock on made the issue fit for a jury, not summary judgment.

“Our position is that Mr. Clark had his day in court,” countered attorney Steven Pigg of the Topeka firm Fisher Patterson Sayler & Smith on behalf of the city of Williamsburg.

“Without a fence and without a ‘no trespassing sign,’ I don’t think it’s unreasonable to go to the backyard when you heard something there if you’re looking for someone,” Pigg added. “The porch was obviously not used.”

While Clark also asked the court to revive other First Amendment claims against the sign code, Pigg said they were practically moot.

Roughly 474 acres, Williamsburg is home to just 397 people. The city, located 60 miles south of Tokepa, has since passed a moratorium against enforcing the sign code since, according to Pigg, “the city isn’t flush with funds to go into an analysis of their signing code, so they’re just letting it hang there.”

U.S. Circuit Judge Mary Beck Briscoe, appointed by Bill Clinton, asked for clarification.

“So Williamsburg is wide open?” Briscoe asked.

“They can post whatever they want,” Pigg said, adding that the city had neither a municipal judge nor a code enforcement officer to enforce the rule— Torre’s part-time position was cut to trim down the budget following Clark’s lawsuit. “There’s no credible threat of enforcement so there’s never any standing to challenge anything else.”

U.S. Circuit Judge Robert E. Bacharach, a Barack Obama appointee, rounded out the panel and attended the hearing remotely from Oklahoma. Briscoe tuned in from Kansas and Tymkovich from Colorado. The judges did not indicate when or how they will decide the case.

Neither Clark nor the city of Williamsburg responded to requests for comment.

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