Little People, Big Lawsuit Confusion in 9th Circuit

     PORTLAND, Ore. (CN) – The stars of the reality show “Little People, Big World” urged the 9th Circuit to revive their various constitutional claims over a county inspection.
     Amy and Matthew Roloff star in “Little People, Big World,” a TLC reality show that portrays a family living with dwarfism as they run a pumpkin farm in Hillsboro, Ore., outside of Portland.
     In 2010 the Roloffs sued Washington County and two officials for trespassing on their farm. County building inspector John Wheeler came on the property, took photos and refused to identify himself, according to the complaint. The Roloffs say Building Services supervisor Jay Winchester directed Wheeler to take the photos.
     Their case was removed to federal court, and U.S. District Judge Michael Mosman dismissed all the claims in June 2012, finding no Fourth Amendment violations. The Roloffs appealed to the 9th Circuit.
     Among other things, the Roloffs had attempted to subpoena Google to find the identity of a blogger who runs a blog with information about “Little People, Big World.”
     A comment on that blog suggested that a wooden ark the Roloffs were building could “topple over,” and the Roloffs believe that a county employee may have made the remark, according to court documents.
     The subpoena was quashed, and the Roloffs appealed that factor among other issues.
     “If, in fact, someone working for Washington County (who has knowledge of the Roloffs’ interactions with Washington County) has been posting detrimental information about the Roloffs on the blog, that evidence supports the Roloffs’ claims that the County had specifically targeted the Roloffs for unequal treatment,” according to the couple’s opening brief, written by attorney Ross Day.
     The brief later states: “If there were an alternate method of obtaining this evidence apart from issuing a subpoena to Google, Inc., certainly the Roloffs would have exercised that option. However, the only way the Roloffs can obtain this evidence is by issuing a subpoena to Google.”
     Washington County’s lawyer, senior assistant county counsel Christopher Gilmore, argued in his brief that Wheeler thought he had permission to enter the Roloff’s property and that the lower court properly found in the county’s favor.
     “Based on his working relationship with the owners over the years, Mr. Wheeler entered the property through an unsigned gate on the belief that he had permission from Matt Roloff to enter the property to address code violations,” Gilmore wrote.
     The parties appeared for oral arguments before a three-judge appellate panel Thursday.
     Day, the Roloffs’ attorney, asked: “The question is would a reasonable inspector honestly believe that it was alright to crawl through a locked gate, walk up a private driveway, walk through the Roloffs’ personal property and not be violating the Fourth Amendment?”
     The question did not sit well with the panel.
     “That’s not really the test,” Judge Andrew Hurwitz said. “The test is whether or not the inspector entered the cartilage,” meaning the area directly around house.
     Hurwitz and Judge Milan Smith laughed upon mentioning that while case law “narrowly defines” curtilage on properties, “there are no cases involving arks.”
     Day contended that the area where Wheeler walked around taking photos was a curtilage because it was an area that he was not given permission to be.
     Judge Hurwitz asked Day what sort of damages the Roloffs suffered.
     “The Roloffs are afflicted with dwarfism,” Day said. “The world outside their home is different for them than it is for us. Everybody they encounter outside their property is a danger to them because they’re so much smaller than everyone else.”
     Judges Smith and Hurwitz seemed skeptical that the Roloffs could recover emotional distress damages in a case like this.
     “Your actual damages here are either trespass damages for which you can already recompense or emotional distress damages, correct?” Judge Hurwitz asked.
     “Correct,” Day replied.
     “In other words, you’re asking us to make new law,” Judge Smith said, concluding the plaintiffs’ side of the arguments.
     Gilmore, the county lawyer, then answered a number of questions about how the inspector’s presence on the Roloffs’ property implicated the Fourth Amendment.
     “If Mr. Wheeler had gone onto the property, walked into the home – clearly into the cartilage – sat down at the kitchen table and had a cup of coffee, and there’s no search, there’s no Fourth Amendment violation,” Gilmore said of a hypothetical scenario.
     Judge Hurwitz asked Gilmore if the inspector generally had authority to enter property without permission.
     “Absolutely not,” Gilmore replied.
     “So this was an unauthorized mission,” Hurwitz said.
     “Absolutely,” Gilmore said. “It was a mistake and we paid for it. That’s why we compensated them.”
     Gilmore also said based on current state law, a plaintiff cannot recover emotional distress damages in trespass actions without evidence of physical damages.
     Concluding, Judge Smith called the case “very interesting and difficult,” and thanked the attorneys for their arguments.
     U.S. District Judge Philip Pro, sitting by designation from Nevada, joined Hurwitz and Smith on the panel.

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