     Case: 15-30630   Document: 00513496022     Page: 1   Date Filed: 05/06/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 15-30630                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
CARY KING; MELBA IRELAND KING,                                     May 6, 2016
                                                                 Lyle W. Cayce
             Plaintiffs - Appellees                                   Clerk

v.

LLOYD G. HANDORF,

             Defendant - Appellant




                Appeal from the United States District Court
                   for the Western District of Louisiana


Before DAVIS, SOUTHWICK, and COSTA, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Cary and Melba King own two properties in LaSalle Parish, Louisiana.
After the Kings challenged a substantial increase in the taxes on these parcels,
the Parish sent two tax assessors to inspect the property. The Kings claim the
inspection was conducted in a manner that violated their constitutional rights.
We conclude the defendant inspector, Lloyd Handorf, is entitled to qualified
immunity. We therefore REVERSE and RENDER.


              FACTUAL AND PROCEDURAL BACKGROUND
       Cary and Melba King own two properties in LaSalle Parish, Louisiana,
that include residential homes, a chicken farm, an office, a workshop, and a
     Case: 15-30630      Document: 00513496022         Page: 2    Date Filed: 05/06/2016



                                      No. 15-30630
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. 1 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



       1 Melba testified that Handorf had inspected and appraised her property before. There
is no evidence or allegation of any misconduct in these prior appraisals.
                                             2
     Case: 15-30630      Document: 00513496022        Page: 3     Date Filed: 05/06/2016



                                     No. 15-30630
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.
      The Kings filed suit in Louisiana state court against defendants Aron
Johnson, Jimmy Dean (the previous LaSalle Parish Tax Assessor), the Tax
Commission, and Lloyd Handorf. 2 The Kings claimed violations of their state
and federal constitutional rights, including their Fourth Amendment rights.
The defendants removed to federal district court and filed for summary
judgment, raising qualified immunity as an affirmative defense for Handorf.
After supplemental briefing, the district court determined that Handorf was
not entitled to qualified immunity because he had exceeded the scope of his
consent and therefore violated the Kings’ Fourth Amendment rights. The
district court denied him summary judgment. Handorf appeals.


                                     DISCUSSION
      I. Jurisdiction
      Under 28 U.S.C. § 1291, we have jurisdiction to review “final decisions
of the district courts.” Denials of summary judgment are ordinarily not final
decisions that can be reviewed. Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir.
2004). Even so, Section 1291 jurisdiction exists over appeals from denials of
qualified immunity based on pure questions of law. Id. The district court
denied Handorf qualified immunity because it determined there was evidence


      2 The Kings claim there was political retribution behind this incident. Melba ran and
lost against Dean, the former LaSalle Parish Tax Assessor, for that office. Johnson, the
current Tax Assessor, was openly endorsed by Dean when Johnson ran to succeed Dean.
Melba opposed Dean, but also opposed Johnson. Melba alleges her property taxes were
increased as a result of political retribution exacted by Dean and Johnson.
                                            3
    Case: 15-30630     Document: 00513496022       Page: 4   Date Filed: 05/06/2016



                                  No. 15-30630
he violated the Fourth Amendment. While there is a factual dispute as to
whether Handorf opened the pool house door, the district court assumed
Handorf had done so for purposes of the summary judgment motion. We have
before us the issue of whether the district court made a legal error in denying
qualified immunity. We therefore “can simply take, as given, the facts that the
district court assumed when it denied summary judgment for that (purely
legal) reason.” Johnson v. Jones, 515 U.S. 304, 319 (1995). We also have
jurisdiction over the legal issues of whether factual disputes are material. See
Short v. West, 662 F.3d 320, 325 (5th Cir. 2011). We give de novo review to the
legal issues relating to qualified immunity. Id.


      II. Qualified Immunity
      “The doctrine of qualified immunity protects government officials from
civil damages liability when their actions could reasonably have been believed
to be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011). It is an
affirmative defense; once properly raised by the defendant, the “plaintiff has
the burden to negate the assertion of qualified immunity.”               Collier v.
Montgomery, 569 F.3d 214, 217 (5th Cir. 2009). To establish that qualified
immunity does not apply, the Kings must prove Handorf “[(1)] violated a
statutory or constitutional right, and (2) that the right was ‘clearly established’
at the time of the challenged conduct.” Morgan, 659 F.3d at 371. “Courts of
appeal are free to decide which of the two prongs of the qualified immunity
analysis to address first. . . . The second prong is satisfied only if ‘the state of
the law at the time of the incident provided fair warning to the defendants that
their alleged [conduct] was unconstitutional.’” Cass v. City of Abilene, 814 F.3d
721, 728 (5th Cir. 2016) (citations omitted) (quoting Tolan v. Cotton, 134 S. Ct.
1861, 1866 (2014)).
      Summary judgment should be awarded “if the movant shows that there
                                         4
     Case: 15-30630       Document: 00513496022         Page: 5     Date Filed: 05/06/2016



                                       No. 15-30630
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). “‘A good-faith assertion of
qualified immunity alters the usual summary judgment burden of proof’,
shifting it to the plaintiff to show that the defense is not available.” Cass, 814
F.3d at 728 (quoting Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015)). “The
plaintiff must rebut the defense by establishing that the official’s allegedly
wrongful conduct violated clearly established law and that genuine issues of
material fact exist regarding the reasonableness of the official’s conduct.”
Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 419 (5th
Cir. 2008). “To negate a defense of qualified immunity and avoid summary
judgment, the plaintiff need not present ‘absolute proof,’ but must offer more
than ‘mere allegations.’” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009).
       The district court determined Handorf failed both prongs, that is, he
violated the Kings’ Fourth Amendment rights and these rights were clearly
established at the time the appraisal occurred. Specifically, the district court
determined that while Handorf had consent to conduct a tax appraisal, he
exceeded this consent by: (1) being on the curtilage; (2) peering into the
windows; and (3) opening the pool house door.
       It is true that “the Fourth Amendment protects the curtilage of a house.”
United States v. Dunn, 480 U.S. 294, 300 (1987). Therefore, an intrusion by
government officials into a house or its curtilage may be a Fourth Amendment
search. 3 Florida v. Jardines, 133 S. Ct. 1409, 1414−15 (2013). Certainly,
Handorf entered the property and curtilage. Consent, however, would render



       3 Handorf argues that if any “search” occurred in this case, it was an “administrative”
search. The Kings do not dispute this characterization. The precise contours of an
administrative search are unclear. See Eve Brensike Primus, Disentangling Administrative
Searches, 111 COLUM. L. REV. 254, 312 n.15 (2011) (noting different definitions on what
constitutes an administrative search). Because our resolution of this case does not depend
on this categorization, we need not address it further.
                                              5
    Case: 15-30630     Document: 00513496022     Page: 6   Date Filed: 05/06/2016



                                 No. 15-30630
Handorf’s alleged search reasonable under the Fourth Amendment.
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Consent can be given
implicitly through a person’s actions. See United States v. Scroggins, 599 F.3d
433, 441−43 (5th Cir. 2010). Finally, the “standard for measuring the scope of
. . . consent under the Fourth Amendment is that of ‘objective’ reasonableness
— what would the typical reasonable person have understood by the exchange
between” the individuals? Florida v. Jimeno, 500 U.S. 248, 250−51 (1991).
      It is uncontroverted that Melba consented to an appraisal. Therefore, as
the district determined, Handorf had the consent to take actions consistent
with that of a tax appraisal. The principal Fourth Amendment question in this
case is whether Handorf exceeded the scope of the consent when conducting
the appraisal, and whether those actions constituted an unreasonable search.
To resolve this question, we must determine what the scope of permissible
action is in a tax appraisal.
      There is no guidance within our circuit regarding the actions a tax
appraiser may take in an assessment.           Further, other than conclusory
allegations, the Kings have not identified the proper course of conduct for a tax
appraiser.   Three cases from our sister circuits, however, support that
Handorf’s actions did not constitute a search under the Fourth Amendment.
      In one case, the 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
                                       6
    Case: 15-30630    Document: 00513496022      Page: 7   Date Filed: 05/06/2016



                                  No. 15-30630
“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.
      The only difference in the actions Handorf took in comparison to the
assessor in Widgren is that Handorf allegedly looked inside the home and
opened the pool house door. There is no indication, though, that Handorf was
on the property for improper reasons that had no nexus to his legitimate
administrative goals. Indeed, Handorf had consent to be on the property,
unlike the assessor in Widgren.
      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. If an officer can
enter the curtilage, rattle door knobs, and peer inside a home, without the
consent of the homeowners, and his actions still do not constitute a Fourth
Amendment search, then it is likely that Handorf’s actions here do not
constitute a search either.
      Finally, we examine a decision from the Fourth Circuit where a search
was deemed to have occurred. Covey v. Assessor of Ohio Cty., 777 F.3d 186 (4th
Cir. 2015). There, a West Virginia tax assessor went to a home despite that
no-trespassing signs were posted and the owners were absent; he found
                                       7
    Case: 15-30630    Document: 00513496022     Page: 8   Date Filed: 05/06/2016



                                 No. 15-30630
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.
      In the present case, Handorf is entitled to qualified immunity unless it
was clearly established that what he did was a violation of the Kings’ Fourth
Amendment rights. Morgan, 659 F.3d at 371. The opinions we have just
reviewed, which are the most relevant discussions of the law in this area,
reveal no clear violations of the Kings’ rights. See Aschroft v. al-Kidd, 131 S.
Ct. 2074, 2083 (2011) (explaining that in the absence of binding authority, a
right should be deemed clearly established only if that is demonstrated by a
“robust ‘consensus of cases of persuasive authority’” (quoting Wilson v. Layne,
526 U.S. 603, 617 (1999))).      Handorf is entitled to qualified immunity.
REVERSED and RENDERED.




                                       8
