United States District Court, W.D. Wisconsin
PATRICIA A WESTMORE and DWIGHT R. WESTMORE, Plaintiffs,
DAVID HYDE, CALLAE K. HYDE, SHERIFF MICHAEL BRENNAN, DEPUTY TERRI L. PROVOST, and ASHLAND COUNTY, WISCONSIN, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE.
a five-day trial, a civil jury concluded that defendants
David Hyde and Terri Provost search of plaintiffs'
property was reasonable and that those defendants, as well as
defendant Callae Hyde, had reasonably seized (or authorized
the seizure of) plaintiffs' donkey and horses. (Special
Verdict -- Liability (dkt. #140).) On May 27, 2016, the clerk
entered final judgment on all claims in favor of defendants.
(Dkt. #146.) Plaintiffs Patricia and Dwight Westmore
subsequently filed post-trial motions to alter or amend the
judgment, which purport to challenge: (1) the jury's
verdict as to their Fourth Amendment unreasonable search
claims; and (2) the court's earlier grant of summary
judgment on plaintiffs' claim for denial of procedural
due process in connection with defendants' seizure of
their donkey (See 5/5/16 Op. & Order (dkt. #93).
(Dkt. #154.) For the reasons explained below, the court will
deny plaintiffs' motion.
technically moved the court to alter or amend the first three
answers on the Special Verdict form to “Yes” and
to amend the court's judgment, citing Federal Rule of
Civil Procedure 59(e), even though Rule 59 authorizes
district courts to amend judgments, not
verdicts. See Frazier v. Boyle, 206 F.R.D.
480, 492 (E.D. Wis. 2002). In the same motion, plaintiffs
alternatively seek an order for a new trial. Under Rule
59(a), a party may be entitled to a new trial “if the
verdict is against the clear weight of the evidence or the
trial was unfair to the moving party.” Whitehead v.
Bond, 680 F.3d 919, 927 (7th Cir. 2012). To prevail on a
Rule 59(e) motion to amend judgment, a party must
“demonstrate a manifest error of law or present newly
discovered evidence.” Seng-Tiong Ho v.
Taflove, 648 F.3d 489, 505 (7th Cir. 2011); see also
Harrington v. City of Chi., 433 F.3d 542, 546 (7th Cir.
2006) (a Rule 59(e) motion must “clearly
establish” a manifest error of law). Regardless,
plaintiffs are not entitled to relief under the applicable
standards of review.
argue that the court's instructions to the jury contained
two material misstatements of law: (1) the closing liability
instructions confused the jury by explaining the “plain
view” doctrine in connection with a search, rather than
a seizure; and (2) the court's response to a question
from the jury added to that confusion by conflating the plain
view doctrine with the “exigent circumstances”
doctrine, which applies to both warrantless searches
and seizures. Although the reasoning is difficult to
follow and underwhelming, plaintiffs then assert that these
errors “incorrectly suggested” the jury should
find defendants' searches were not unreasonable
“if defendants could merely ‘see something'
from plaintiffs' driveway.” (Pls.' Opening Br.
(dkt. #155) 8.)
respect to the closing liability instructions, plaintiffs
emphasize the following language from the “Unreasonable
Search” instruction, which concerns the extension of
the Fourth Amendment's protection against unreasonable
searches to areas beyond the home itself:
Generally, there is no Fourth Amendment expectation of
privacy for areas that can be viewed from a driveway, walkway
or other areas that can be openly viewed by the public,
including the visible interior of a barn or other structure
when the doors are left open to public view. In determining
whether a property owner has a reasonable expectation of
privacy in a barn or other structure on their property, you
may consider such factors as:
• its proximity to the home;
• whether it is fenced-in or closed;
• whether anything obstructs access to or view of it;
• whether it is a typical location for a property owner
to engage in private activities.
(Pls.' Opening Br. (dkt. #155) 5 (emphasis removed)
(quoting Liability Jury Instructions (dkt. #142) 3).)
Plaintiffs fail entirely, however, to articulate the reasons
why they believe this portion of the instructions
misstated the law, aside from insisting repeatedly that the
“plain view” doctrine only applies to seizures,
not searches, which on its face, at least, appears to be a
taking the plaintiffs' excerpted, underlined language out
of context from the whole “unreasonable search”
instruction, neither the words “plain view, ” nor
the elements of the plain view doctrine are included; nor do
they appear anywhere else in the court's unreasonable
search instructions. On the contrary, the language only
addresses the scope of the property owners' reasonable
expectation of privacy in areas that can be viewed from a
driveway or walkway, including unobstructed views into an
open barn or other structure on the property. As reflected in
the final jury instructions conference, the court adopted
this instruction after plaintiffs objected to defendants'
much broader proposal, which described the concept of access
by “open field” on the theory that none of the
pastureland or outbuildings granted any expectation of
privacy. Thus, the portion of the instructions plaintiffs
would emphasize concerns only whether a search
occurred within the meaning of the Fourth Amendment, and it
was specifically directed to assist the jury in thinking
about what defendants could see from different
positions on plaintiffs' property without implicating
their reasonable “expectation of privacy.”
(See, e.g., 5/26/16 a.m. Trial Tr. (dkt.
#153) 42-43, 50-51.) Tellingly, plaintiffs did not object to
the introduction of the concept of an expectation of privacy,
just to the court's attempt to better define that for the
citing of a Second Circuit case for the proposition that the
“distinction between searches and seizures is of
critical importance as a matter of law” under the plain
view doctrine just furthers the confusion. In Ruggiero v.
Krzeminski, 928 F.2d 558 (2d Cir. 1991), the court
simply held that warrantless seizures do not violate the
Fourth Amendment when the government official's
“initial intrusion . . . [was] lawful so that he can
justify being in a position to make his discovery” and
he “had probable cause to believe that the item seized
was evidence of a crime.” Id. at 561
(citations omitted). That holding has no significance here.
First, as noted previously, the language from the
jury instruction in this case makes no reference,
either explicit or implicit, to the plain view doctrine.
Plaintiffs' description of it as the so-called
“plain view” instruction derives from a shorthand
label used by the parties and the court to refer to the
language defining a reasonable expectation of privacy, as
reflected in discussions about the liability jury