In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2654

Robert Siebert and Pamela Siebert,

Plaintiffs-Appellants,

v.

David Severino,

Defendant-Appellee.

Appeal from the United States District Court
for the Central District of Illinois, Peoria Division.
No. 98 C 1411--Michael M. Mihm, Judge.

Argued December 7, 2000--Decided July 6, 2001


  Before Bauer, Manion, and Rovner, Circuit
Judges.

  Manion, Circuit Judge. David Severino,
a volunteer investigator for the Illinois
Department of Agriculture, seized three
horses owned by Pamela Siebert, after
having searched a barn owned by Pamela
and her husband Robert. After the
Sieberts got the horses back, they sued
Severino under Section 1983, alleging
that he violated their Fourth Amendment
right to be free from unreasonable
searches and seizures and deprived them
of their property--three horses--without
due process of law. The district court
granted Severino summary judgment. The
Sieberts appeal, and we reverse.

I.   Background/1

  Robert and Pamela Siebert own and reside
on property in rural Carlock, Illinois.
Their home and barn are situated on a
four and one-half acre site. The barn,
which is located approximately sixty feet
from their house, is surrounded by a
fence. Also inside the fence are a riding
area, turn-outs, and a paddock. The
horses are free to go in and out of the
barn at will. About a five-minute walk
from their own property is a seven-acre
pasture owned by their friend and
neighbor Deb Oberg. Ms. Oberg agreed to
allow the Sieberts to turn out their
horses on her pasture in exchange for
their keeping up the area. This pasture
is very hilly and has a stream running
through it.

  The Sieberts, who at the relevant time
owned seven horses, kept three in Oberg’s
pasture and four in their own fenced-in
riding and barn area. They also rotated
the horses at times, bringing the three
in from the pasture and turning out the
others. The three horses kept in the
pasture were fed twice a day; the
Sieberts would tie buckets of grain to
the fence posts and throw hay on the
ground for them to eat. Water for the
horses came from the creek that runs
through the pasture, and in the winter,
if the creek froze, Robert would break
the ice with an ax handle. While there
are no significant man-made shelters on
the property, there are abundant trees
and steep slopes which establish a
windbreak for the horses. The Sieberts
have kept horses at this location for
approximately 15 years, and Pamela has
extensive experience with horses and is
knowledgeable about their needs and care.

  On December 16, 1996, David Severino,
who is a volunteer for the Illinois
Department of Agriculture, received a
complaint that the Sieberts’ horses were
in a fenced area with no shelter or
water. In response, Severino entered the
Sieberts’ fenced-in paddock and turn-out
area without a search warrant to inspect
the horses. He also entered the Sieberts’
barn where the feed and hay were kept,
taking a sample of each. In addition he
entered and inspected Ms. Oberg’s
property where the three horses were
located. On the day he went to the
Sieberts’, the temperature ranged from 28
to 42 degrees, and there was abundant dry
ground in the Oberg pasture that was
easily accessible by the horses. Before
leaving the Sieberts’, Severino taped a
Notice of Apparent Violation on the door
to their house. The notice stated that
the Sieberts had failed to provide the
horses in the pasture with adequate
shelter and protection from weather and
had failed to provide them with humane
care and treatment. It also stated that
the horses were standing in mud and that
there were no dry areas for them to stand
and that they were drinking from the
creek. The notice gave the Sieberts 72
hours to take corrective action.
  When the Sieberts discovered the notice,
they drove to Severino’s house to discuss
the situation with him, but he was not
home. The next day, Pamela called
Severino’s office to arrange a meeting.
Severino was not at the office, so Pamela
explained the situation to the person who
answered the phone for Severino. Pamela
said that she would move the horses to
the barn right away, if that was what she
had to do. A person named "Leah" at
Severino’s office instructed Pamela to
leave the horses where they were--
describing the layout as "a beautiful
place" and "perfect . . . for horses"--
and to await a call from Severino.
Severino never returned the call, even
though Pamela provided Leah with "all the
numbers I could think of wherever I would
be." Instead, on December 19, he returned
to their home with several police
officers to seize the horses. He tried to
put the three horses in a two-horse
trailer, but not surprisingly had
problems. One of the Sieberts’ neighbors
went over to help when she saw that
Severino and the officers could not
control the horses and were hitting them
to get them inside the trailer. Somehow
they succeeded with this venture and
before leaving, they gave the Sieberts’
son a Notice of Impoundment. The horses
were taken to a barn where the Sieberts
later found them to be without water and
with a mare and stallion together in the
same stall. Over the next two days,
Pamela met with Severino and had various
conversations concerning the horses.
Apparently, Severino agreed to return the
horses if they built a "stall," which
they did literally overnight, as by
December 21, 1996 all three horses were
returned to the Sieberts. (Presumably
this so-called stall was some kind of
free-standing shelter or shed.)

  After the Sieberts’ horses were
returned, they sued David Severino and
the officers involved under Section 1983,
alleging that the defendants violated
their Fourth and Fourteenth Amendment
rights. They also asserted a state law
claim for trespass. All of the
defendants, other than David Severino,
were dismissed from the case, and then
the parties engaged in discovery. During
discovery, the Sieberts learned that
Severino had told Chet Boruff, the Deputy
Director of the Department of
Agriculture, that the horses were kept in
a confined, muddy area, were emaciated,
near death, in danger, and needed to be
removed immediately. However, as noted
above, the horses were not kept in a
confined, muddy area and were well-fed,
and Severino does not now contend
otherwise.

  Following discovery, Severino moved for
summary judgment on the constitutional
claims. The district court granted that
motion. The district court also dismissed
the Sieberts’ state law trespass claim,
concluding that a state Court of Claims
had exclusive jurisdiction over it. The
Sieberts appeal from the district court’s
summary judgment ruling on the
constitutional claims, but do not
challenge the dismissal of the state law
trespass claim.

II.    Analysis

A.    Fourth Amendment

  The Sieberts sued Severino under Section
1983 for violating their Fourth Amendment
rights, as incorporated by the Fourteenth
Amendment. Actually, the Sieberts present
two distinct Fourth Amendment claims:
First, they contend that Severino
violated their Fourth Amendment right to
be free from unreasonable searches by
entering and searching their barn; and
second, they claim that Severino violated
the Fourth Amendment’s prohibition of
unreasonable seizures by seizing the
three horses without a warrant and
without exigent circumstances.


  1.    The search of the barn.

  It is undisputed that Severino entered
and searched the Sieberts’ barn. He did
not have a warrant to do so. Severino
contends that he did not need a warrant
because the barn was not within the
curtilage of the Sieberts’ home, and
therefore it was outside the protection
of the Fourth Amendment. The Sieberts
concede that their barn, which is about
60 feet from their home, was outside the
curtilage of their home, but maintain
that because they had an expectation of
privacy in the barn, it is still
protected by the Fourth Amendment.

  The Fourth Amendment protects persons
against unreasonable searches and
seizures of their "persons, houses,
papers, and effects." Both a home and the
home’s curtilage--i.e., "the area outside
the home itself but so close to and
intimately connected with the home and
the activities that normally go on there
that it can reasonably be considered part
of the home"--are within the scope of the
Fourth Amendment’s protection. United
States v. Shanks, 97 F.3d 977, 979 (7th
Cir. 1996) (quoting United States v.
Pace, 898 F.2d 1218, 1228 (7th Cir.
1990)). Thus, the government cannot
search this area absent a warrant (or
some exception to the warrant
requirement). But if a search occurs
outside the home or the home’s curtilage-
-even if it is on private property--the
Fourth Amendment’s guarantee applies only
if the property owner has a legitimate
expectation of privacy in the area. This
is because the Supreme Court has rejected
a property-line approach to the Fourth
Amendment, concluding instead that the
government may enter a person’s private
property (outside of the curtilage) and
conduct a warrantless search, unless that
individual has a legitimate expectation
of privacy in the property searched. Id.

  Thus, the question presented on appeal
is whether the Sieberts had a reasonable
expectation of privacy in their barn.
They did. The barn was within 60 feet of
their home. It had doors on it, which
they often kept locked, and it was
located in a fenced-in area of their
property. Severino contends that the
Sieberts did not have an expectation of
privacy in the barn because they were not
engaged in intimate activities in the
barn. But how did he know that without
first going inside? In fact, Severino
entered the premises in response to a
report of animal abuse. Such an enclosed
structure is a typical location for a
property owner to engage in private
activities. Curious friends and
neighbors, much less a government agent
with a mission, would be expected to keep
out. See, e.g., United States v. Wright,
991 F.2d 1182, 1186 (4th Cir. 1993)
(holding that there was a legitimate
expectation of privacy inside a barn).

  Severino cites United States v. Dunn,
480 U.S. 294, 300 (1987), wherein the
Supreme Court held that, even without a
warrant, the police could
constitutionally stand outside a barn and
"peer[ ] into the barn’s open front." But
Dunn did not hold that the police could
enter the barn itself. Id. at 303. The
Fourth Circuit noted that distinction in
Wright, when holding that a landowner had
a legitimate expectation of privacy in a
barn and therefore the Fourth Amendment
prevented the police from entering the
barn without a warrant. Severino didn’t
just peer in--he went inside, searched
the premises and inspected the feed and
hay stored inside. See, e.g., Kyllo v.
United States, 99-8508 at 4 n.1 (June 11,
2001) ("When the Fourth Amendment was
adopted, as now, to ’search’ meant ’[t]o
look over or through for the purpose of
finding something; to explore; to examine
by inspection; as to search the house for
a book; to search the wood for a
thief.’") (quoting N. Webster, An
American Dictionary of the English
Language 66 (1828) (reprint 6th ed.
1989)).

  Alternatively, Severino argues that even
if the Sieberts had a reasonable
expectation of privacy in their barn, the
law was not clearly established at the
time that he searched their barn and
therefore he is entitled to qualified
immunity. Qualified immunity protects
"government officials performing
discretionary functions . . . 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." Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). A violation may be
clearly established if the violation is
so obvious that a reasonable state actor
would know that what they are doing
violates the Constitution, or if a
closely analogous case establishes that
the conduct is unconstitutional. Brokaw
v. Mercer County, 235 F.3d 1000, 1022
(7th Cir. 2000).

  This case seems to fit within the
"obvious" scenario--a reasonable state
actor would know that he cannot enter a
fenced-in, closed structure located
within 60 feet of a person’s house
without a warrant or some exception to
the warrant requirement. But even if not
reasonably obvious to Severino, a closely
analogous case indicates that his conduct
was unconstitutional: his search took
place in 1996, and less than three years
earlier the Fourth Circuit held that
citizens enjoy an expectation of privacy
in their barn. See Wright, 991 F.2d at
1186./2 Therefore, Severino is not
protected by qualified immunity.

  Even if Severino nosed around in the
Sieberts’ barn, there appears to be
little or no damage, so what’s the harm?
The harm is that Severino violated the
Sieberts’ constitutional rights. Had the
Sieberts been doing something illegal in
the barn and Severino’s search uncovered
evidence, the Supreme Court mandates that
such evidence be excluded (unless, of
course, there is some exception to the
exclusionary rule). In the criminal
context, the evidence is excluded even
though it might otherwise be used to
convict the accused. But the Fourth
Amendment does not only protect people
accused of crimes. The law recognizes
that law-abiding citizens can sue and
recover general (or presumed) damages for
a Fourth Amendment violation, even
without proof of injury. Hessel v.
O’Hearn, 977 F.2d 299, 301 (7th Cir.
1992)./3 Additionally, punitive damages
are recoverable under Section 1983 even
in the absence of actual damages where
the jury concludes that the defendant’s
conduct was "motivated by evil intent or
involv[ed] reckless or callous
indifference to the federally-protected
rights of others." Erwin v. County of
Manitowoc, 872 F.2d 1292, 1299 (7th Cir.
1989). In the end, it will be for the
jury to decide the proper quantum of
relief, if any, for Severino’s violation
of the Sieberts’ Fourth Amendment rights.


  2.   The seizure of the horses.

  The Fourth Amendment also protects
against unreasonable seizures. Pamela
contends that Severino violated her
Fourth Amendment rights when he seized
her three horses. Initially, we note that
because Robert admitted that he did not
own the horses, and that the papers for
the horses were all in Pamela’s name,
Robert lacked standing to sue. Cf. Perry
v. Village of Arlington Heights, 186 F.3d
826, 829-30 (7th Cir. 1999) (plaintiff
lacked standing to challenge the
constitutionality of the seizure and
disposal of abandoned automobiles
pursuant to the Illinois Motor Vehicle
Code, where the plaintiff did not own an
automobile). Pamela’s Fourth Amendment
claim based on the seizure remains, and
so we address that.

  Specifically, Pamela contends that
because Severino seized the horses
without a warrant, he violated her Fourth
Amendment rights. The removal of an
animal constitutes a "seizure" for
purposes of the Fourth Amendment, and
thus such a seizure must meet that
Amendment’s constitutional requirements.
See, e.g., Lesher v. Reed, 12 F.3d 148,
150 (8th Cir. 1994). Generally, the
government needs a warrant to seize
property, and as we have noted, Severino
did not possess a warrant justifying the
seizure./4

  Severino argues that he did not need a
warrant to seize the horses under the
Illinois Humane Society Act.
Specifically, he relies on Section 11 of
the Act which does not require an
investigator to obtain a warrant,
requiring only that the investigator
"contact the Department [of Agriculture]
and request authorization to impound the
animal or animals . . . ." 510 ILCS
70/11(b). The Act provides that "[t]he
Department will authorize the impoundment
if a review of facts gathered by the
humane investigator indicates a violation
of Section 3 . . . has occurred and the
violator . . . has failed or refused to
take corrective action. . . ." Id.
Section 510 ILCS 70/12(a) similarly
provides that if the owner fails to take
the necessary corrective action, the
Department of Agriculture may authorize a
humane investigator to impound the
animals in a facility which will provide
good care.

  Severino’s reliance on these provisions
is misplaced for two alternative reasons.
First, Section 70/11(b) mandates that the
humane investigator contact the
Department of Agriculture and request
authorization to impound the animals, but
in his affidavit, Severino stated that he
did not speak with Chet Boruff, who was
the Deputy Director of the Department of
Agriculture, "until after the incident
and [after] I had taken custody of the
horses." Read in the light most favorable
to the Sieberts, this indicates that
Severino failed to obtain the statutorily
required authorization to impound the
horses. Therefore, he cannot rely on the
statute to justify the warrantless
seizure of the horses.

  Alternatively, if Severino did in fact
obtain permission to impound the horses
from the Department of Agriculture, the
record (again read in the light most
favorable to the Sieberts) indicates that
the Department authorized the animals’
seizure based on Severino’s
misrepresentation of their condition.
Specifically, Deputy Director
Boruffindicated that Severino had said
that "the animals were in, oh, a near
death situation, . . . and that they were
in danger and they needed to be gotten
out of there immediately . . . ."
Moreover, Pamela stated in her deposition
that when Deputy Director Boruff came to
view her property, he asked her where the
fence was, and she had asked "What
fence?" To which Boruff responded, "The
fence that kept them right in that area
where the mud was." After Pamela
explained that there was no fence and
that he could go look for holes, Boruff
said, "well, it was [my] understanding
that the horses were kept in a very small
area and couldn’t leave the mud." But the
record demonstrates that these
representations were false; the horses
were not confined in a small, muddy area
and they were not near death./5 Thus,
even if Severino sought and obtained
authorization from the Department of
Agriculture under Section 70/11, he
cannot seek refuge in that statute
because viewing the record in the light
most favorable to the plaintiffs
indicates that Severino obtained
permission to impound the animals only
because he misrepresented their condition
to the Department of Agriculture./6

  Severino argues alternatively that he
was entitled to seize the horses based on
exigent circumstances. Exigent
circumstances may justify a warrantless
seizure of animals. See, e.g., DiCesare
v. Stuart, 12 F.3d 973, 977 (10th Cir.
1993). Severino claims that this is such
a case and points to his original Notice
of Apparent Violation which stated that
the animals were standing in mud, kept
outside in the cold and were drinking
from a stream. Under these stated
conditions, however, not only were the
animals not in imminent danger, they were
not in any danger at all. As the record
establishes, the three horses were kept
on a seven-acre pasture which while in
parts was muddy, offered many dry
standing areas. But horses, being horses,
may prefer standing in the mud from time
to time. And no doubt horses have been
drinking out of streams long before
humans harnessed and saddled them. This
leaves the only remaining basis asserted
of exigent circumstances--that the horses
were kept outside in the cold. That too
is ordinary and natural, even in the
winter months. Although horses that are
regularly turned out in pastures adjust
to and thrive in cold weather, as with
any animal, extreme cold can
causesuffering, even death. But
temperatures ranging in the 20’s and 30’s
are not dangerous for healthy animals
used to being outside. In any event,
Severino could not have thought that the
horses were faced with imminent harm
because he left them at the Sieberts’ for
three days after his initial search.

  Alternatively, Severino argues that
while the circumstances originally may
not have justified the seizure, by the
time of his second visit the temperature
had dropped to between 4 and 14 degrees,
and therefore exigent circumstances
justified his seizure at that time. While
such temperatures may seem cold to the
untrained layman, a supposedly informed
worker at the Department of Agriculture
would know that horses grow longer and
thicker hair to accommodate the cold
weather; that horses take advantage of
natural windbreaks, such as the trees and
steeply sloped hills and almost vertical
bluff landscaping the seven-acre Oberg
pasture; and that as long as the animals
have adequate food and water, they get
along fine in such temperatures. As the
record shows, such conditions are not
dangerous or inhumane, and thus do not
create exigent circumstances.
Specifically, Pamela Siebert testified in
her deposition that she had extensive
experience with horses and is
knowledgeable about meeting their needs
and caring for them, and that the care
she and her husband provided conformed to
the custom and practice in the horse
trade. She further explained in the
deposition that she verified her own
expertise on caring for horses by
referring to well-known horse periodicals
and books, and that these in fact
confirmed that the conditions suited the
needs of horses. Severino did not present
any evidence to contradict Pamela’s
testimony. Nor is there any evidence in
the record supporting Severino’s
contention that 4-14 degrees is too cold
for horses to be kept safely outdoors.
Moreover, the record fails to show that
Severino had any knowledge about the
appropriate care for horses, much less
any expertise about horses in general,
such that his view that it was too cold
to keep horses outside isn’t worth any
weight whatsoever. In fact, given that
Severino placed three horses in a two-
horse trailer and then boarded a mare and
a stallion in the same stall, the most
reasonable inference is that Severino had
little knowledge as to how to care for
horses./7 Furthermore, if the cold were
of concern, rather than seizing them,
Severino could easily have moved the
horses to the barn where Pamela’s other
horses were. After all, he had already
checked out the barn and apparently found
it satisfactory. There is yet another
reason why Severino’s seizure was not
reasonable--his office (a woman called
Leah) informed Pamela not to move the
horses, and under these circumstances it
was unreasonable for him to seize them
without attempting to return the
Sieberts’ telephone call.

  Once again, Severino asserts the defense
of qualified immunity, arguing that he
reasonably believed that exigent
circumstances justified the seizure of
the horses. The first question, given the
conditions he found during the initial
inspection, is whether a reasonable
officer could have mistakenly believed
that exigent circumstances existed
justifying the warrantless seizure. Cf.
Humphrey v. Staszak, 148 F.3d 719, 725
(7th Cir. 1998). We reject this argument
because the record evidence demonstrates
that a reasonably informed governmental
worker authorized to ensure humane care
would know that temperatures between 28-
42 degrees, or even 4-14 degrees, do not
constitute exigent circumstances
justifying a warrantless seizure of
horses. The second question raises more
of a concern. Even if a reasonable humane
care worker could believe exigent
circumstances justified the seizure of
the horses, in this case, the evidence
presented at summary judgment indicates
that Severino either greatly exaggerated
the condition of the horses and the
premises to the Department of Agriculture
in order to obtain permission to seize
them, or did not contact the Department
of Agriculture (as required by statute)
until after he impounded the horses. In
either case, this precludes a defense of
qualified immunity. Cf. Brokaw, 235 F.3d
at 1022 ("It is clearly established law
that a government official’s procurement
through distortion, misrepresentation and
omission of a court order to seize a
child is a violation of the Fourth
Amendment.") (internal quotation
omitted).

B.   Due Process

  Pamela’s final claim is a due process
claim. She argues that Severino violated
her right to procedural due process by
removing her horses without providing her
with a predeprivation hearing./8 A
"procedural due process [claim] requires
a two-step analysis. First, we consider
whether the plaintiff was deprived of a
constitutionally protected interest in
life, liberty or property. If [s]he was,
we then determine what process [s]he was
due with respect to that deprivation."
Porter v. DiBlasio, 93 F.3d 301, 305 (7th
Cir. 1996). Clearly, Pamela’s ownership
interest in the three horses is a
protected property interest under the
Fourteenth Amendment. Id.

  Because Pamela was denied her property,
we must now consider the constitutionally
required process corresponding to the
removal. "Due process requires that a
person not be deprived of property
without notice and an opportunity for a
hearing." United States v. Michelle’s
Lounge, 39 F.3d 684, 697 (7th Cir. 1994).
Absent exigent circumstances, or a random
or unforeseen act, a pre-deprivation
procedure is generally required before
the government may deprive a person of
their property. Zinermon v. Burch, 494
U.S. 113, 132 (1990); Logan v. Zimmerman
Brush Co., 455 U.S. 422, 436 (1982).
Moreover, "the requirement of due
process, including a pre-deprivation
hearing where feasible, applies to
temporary as well as to permanent
deprivations." Penn Cent. Corp. v. U.S.
R.R. Vest Corp., 955 F.2d 1158, 1162 (7th
Cir. 1992). Therefore, we must determine
whether the general rule mandating a pre-
deprivation hearing applies, or whether a
post-deprivation hearing would suffice to
satisfy due process in this case.
  Initially, we note that Severino does
not argue that his actions in directing
the removal of the horses were random or
unforeseen. Nor were the circumstances
(as they existed, not as Severino may
have exaggerated) so exigent as to have
justified dispensation of the pre-
deprivation hearing. See supra at 12 - 14
(discussing lack of exigent circumstances
in context of the Fourth Amendment).
Thus, a pre-deprivation hearing is
seemingly required. Yet even in the
absence of those "enumerat[ed] discrete
exceptions to the requirement of pre-
deprivation process," Penn Central, 955
F.2d at 1164, under Mathews v. Eldridge,
424 U.S. 319, 335 (1976), we must still
ask "whether, all things considered,
predeprivation process is a reasonable
requirement to impose. That depends on
the balance between the benefits and the
costs of such process." Penn Central, 955
F.2d at 1163.

  In weighing the costs and benefits, the
Supreme Court has set forth three
considerations:

First, the private interest that will be
affected by the official action; second,
the risk of an erroneous deprivation of
such interests through the procedures
used, and the probable value, if any, of
additional or substitute procedural
safeguards; and finally, the Government’s
interests, including the function
involved and the fiscal and the
administrative burdens that the
additional or substitute procedural
requirement would entail.

Mathews, 424 U.S. at 335.

  As to the first consideration, "there
can be no dispute that an animal owner
has a substantial interest in maintaining
his rights in a seized animal. Such is
especially the case with potential
income-generating animals such as horses,
cattle, swine, and the like." Porter v.
DiBlasio, 93 F.3d 301, 306-07 (7th Cir.
1996)./9 Animal owners also have a
substantial interest in their "mere"
pets, and while the value of pets is
different from income-generating animals,
it is not necessarily lesser. Id. Second,
the risk of an erroneous deprivation of
Pamela’s interest in her horses through
the procedures used is great, as the
reality of this case demonstrates. The
state used a volunteer investigator who
apparently lacked sufficient knowledge
about horses to determine whether
appropriate care was given, and the
procedures failed to provide the Sieberts
with the opportunity to discuss the
situation before the animals were
removed. Moreover, the procedure used in
this case allowed Severino to exaggerate
the conditions he encountered in
discussing the situation with the
Department of Agriculture, and some sort
of pre-deprivation hearing would have
prevented or reduced the chance of an
erroneous deprivation based on such
misrepresentations.

  As to the final factor, "the
Government’s interests" and "the fiscal
and the administrative burdens that the
additional or substitute procedural
requirement would entail," we note that
it would not be much of a burden for the
government (in non-exigent circumstances)
to allow animal owners to tell their side
of the story before their animals are
seized. After all, Severino waited 72
hours before seizing the horses and
during that time the Sieberts contacted
his office in order to discuss the
situation, demonstrating the feasibility
of pre-deprivation process. That is not
to say that a full-blown hearing is
required, Penn Central, 955 F.2d at 1162,
but at a minimum Pamela had the right to
some sort of pre-deprivation opportunity
to be heard. Of exactly what sort, we
need not decide. It may well be that had
Severino met with Pamela, allowing her an
opportunity to present her side of the
case, that would be enough. We need not
reach this question, however, because in
this case not only did Severino never
meet with Pamela before he took the
horses, but his office expressly told
Pamela not to remove the horses from the
pasture and that he would contact her.
But Severino never did, instead removing
the horses the next day. Under these
circumstances, we conclude that Pamela
has presented sufficient facts to support
a due process claim based on the horses’
removal without a pre-deprivation
hearing./10

  Severino is also not entitled to
qualified immunity on this claim because
it has been clearly established since at
least Logan, 455 U.S. 422, that unless
pre-deprivation relief is impractical, it
must be provided. While acknowledging
that it was clearly established that a
pre-deprivation hearing is required
absent an emergency situation or a random
and unauthorized deprivation, the
district court nonetheless concluded that
Severino was entitled to qualified
immunity because the Illinois Humane Care
for Animals Act only provided post-
deprivation process, reasoning that
Severino could reasonably believe that
that was all that was constitutionally
required. But it may well be that the
reason the Illinois Humane Care for
Animals Act only requires post-
deprivation process is because the
Department of Agriculture will only
authorize a pre-hearing seizure in
exigent circumstances. See supra at 12.
In that case, the seizure would be
constitutionally justified even though
there was no pre-deprivation hearing. But
the record creates the inference that
Severino either did not contact the
Department of Agriculture until after the
fact or provided it with false and
misleading information in order to obtain
permission to impound the horses, which
the Department may have relied on in
ordering the seizure of the horses. Under
either scenario, Severino failed to
comply with the Illinois Humane Care for
Animals Act, so that statute cannot
provide him with a basis for qualified
immunity on Pamela’s due process claim.

III.   Conclusion

  The Sieberts had a reasonable
expectation of privacy in their barn, and
have presented sufficient evidence from
which a jury could conclude that Severino
violated their Fourth Amendment rights by
entering their barn without a warrant. Of
course, if a jury finds a constitutional
violation, it will also need to assess
the appropriate measure of damages for
that constitutional violation. Pamela
(but not Robert, who lacks standing)
presented sufficient evidence to enable a
jury to find a due process claim as well
as a Fourth Amendment claim against
Severino for seizing her horses without a
warrant and without exigent
circumstances. For the reasons set forth
above, we also conclude that the facts
read in the light most favorable to the
Sieberts prevent Severino’s claim of
qualified immunity. Accordingly, we
REVERSE and REMAND to the district court
for further proceedings consistent with
this opinion.

FOOTNOTES

/1 Because this appeal comes to us from summary
judgment, we present the facts in the light most
favorable to the Sieberts, drawing all reasonable
inferences in their favor. Lolling v. Patterson,
966 F.2d 230, 233 (7th Cir. 1992).

/2 The fact that Wright is a Fourth Circuit case is
irrelevant. See Donovan v. City of Milwaukee, 17
F.3d 944, 952 (7th Cir. 1994) ("In ascertaining
whether a particular right has been ’clearly
established’ . . . this court has not required
binding precedent from the Supreme Court or the
Seventh Circuit.").

/3 Pamela may also have some special (or actual)
damages--albeit minor--resulting from the illegal
seizure of the horses, as in her deposition when
questioned as to damages, she mentioned the cost
of the gas she used to drive around tracking down
Severino and her horses.

/4 The district court noted that the Sieberts did
not present any evidence that Severino seized the
horses without a warrant, using this absence of
evidence as an alternative basis for rejecting
their Fourth Amendment claim. But in paragraph 13
of their complaint, the Sieberts alleged that
Severino entered their property and seized the
horses without a warrant, and in his answer
Severino admitted that he "seized the horses
pursuant to Illinois Humane Care for Animals Act,
but denie[d] the remaining allegations contained
in paragraph 13 of the complaint." This legalis-
tic response is obviously ambiguous as to whether
or not Severino had a warrant, but reading the
answer in the light most favorable to the Sie-
berts, the record supports their position that
Severino did not have a warrant. Moreover, at
oral argument, Severino’s attorney admitted that
he did not have a warrant authorizing the seizure
of the horses, so rather than assume that his
catch-all denial to the allegations contained in
paragraph 13 falsely included the issue of the
existence of a warrant, we conclude that the
record establishes that no such warrant existed.
Additionally, it should be the government who
should be required to come forward with evidence
that a warrant exists--if it does--as the govern-
ment knows if it did or did not apply for the
warrant, and it will be difficult to prove the
negative, i.e., that no warrant was issued. Under
these circumstances, the district court’s ratio-
nale will not suffice as a basis for rejecting
the Sieberts’ Fourth Amendment claim.
/5 Also suspicious is the fact that the Notice of
Apparent Violation which Severino taped to the
Sieberts’ door on December 16, 1996 stated that
the horses were drinking from the creek, but in
response to this litigation, Severino filed an
affidavit in which he attested that "I observed
that the creek which ran through the property was
frozen and the horses were without water." It is
difficult to fathom how the horses could be
drinking from a frozen creek. These inconsisten-
cies further create the reasonable inference that
Severnio misrepresented the horses’ condition.

/6 In fact, it may be that the reason the Humane
Care for Animal Act does not require a warrant
for the seizure of animals is because the Depart-
ment of Agriculture will only authorize a war-
rantless seizure in cases involving exigent
circumstances. To the extent that the Department
does authorize the warrantless impoundment of
animals in other non-emergency situations, we
make no comment on the constitutionality of
Section 70/11 applied in that context, as the
case before us involves a different factual
scenario.

/7 While the record indicates that to be appointed
as a humane investigator a person must be in-
structed in classes and pass an open-book exami-
nation, the record fails to establish that these
prerequisites qualify a person as being knowl-
edgeable about the care of horses.

/8 Actually, both Pamela and Robert assert a due
process claim, but as noted above, since Robert
does not own the horses, he lacks standing to
sue.

/9 While Porter involved the permanent deprivation
of animals, "the requirement of due process,
including a predeprivation hearing where feasi-
ble, applies to temporary as well as topermanent
deprivations." Penn Central, 955 F.2d at 1162.
Although, "[t]he shorter the deprivation in
relation to the period required to complete the
post-deprivation hearing, the less likely a
predeprivation hearing is to be feasible." Id.
But feasibility goes to the question of the
fiscal and administrative burdens.

/10 The government may of course seize animals with-
out a pre-deprivation hearing if exigent circum-
stances exist. Logan, 455 U.S. at 436. But, as
discussed above, exigent circumstances did not
justify Severino’s actions.
