4th and 14th Amendment Rights

[midflamagi]

What is the name of your state? Florida

Is there a statute of limitation for filing a lawsuit against someone for violating someones US Constitutional 4th Amendment rights?

 

[racer72]

Depends. More info would sure be helpful.

 

[midflamagi]

Additional Info

A Code Enforcement Officer went to the rear of my homesteaded property when my family was temporarily living with a relative. She claims she saw an open door and instead of contacting me, she called the local police to assist - and entered the house with no warrant. She then came to the relatives house and told my wife and me what she had done. I believe she did this to gain entry into the house as the electricity (which was off at the time) was disconnected from the entry pole after her "inspection".

Florida

 

[BelizeBreeze]

A Code Enforcement Officer went to the rear of my homesteaded property when my family was temporarily living with a relative. She claims she saw an open door and instead of contacting me, she called the local police to assist - and entered the house with no warrant. She then came to the relatives house and told my wife and me what she had done. I believe she did this to gain entry into the house as the electricity (which was off at the time) was disconnected from the entry pole after her "inspection".

Florida

and your LEGAL question?

 

[midflamagi]

Please see first post

Is there a statute of limitations for filing a suit? My second post was in answer to Racer72's request for more info.

 

[racer72]

What are your damages?

 

[tranquility]

In order to sue a government, you must ask permission first. There is a statute of limitation on that. To file a federal lawsuit under 42 U.S.C. 1983, there is a statute of limitation on that. To file a state cause of action, there is a statute of limitation on that. Generally, the time limit goes from shorter to longer in the order I listed them.

But, you have three *big* problems. First, what are your damages? Mere violation of your civil rights is not damages. You must have been hurt in some way. Second, you have a little thing called qualified immunity to overcome. And, I don't see you being able to argue past it if you can't find out a statute of limitation for what you envision on the internet in a minute or two. Finally, you haven't described a civil rights violation yet. I can think of a few reasons why it may not be a violation--and, civil rights suits can have the penalty of paying the other side's attorney's fees under 42 U.S.C 1988. While the law was designed to reimburse Plaintiffs, Defendants can get their fees paid under certain circumstances. You will need a lot more facts before you would get past summary judgment and run the risk of paying for your opponent's costs.

 

[midflamagi]

Thanks for your comments on this subject. Actually an almost identical lawsuit was already filed, appealed and won by a Florida resident in 2004. The only damage he and his wife suffered were violations of his 4th,5th and 14th Amendment rights. He did also file several additional counts in his suit that were violations of Florida Statutes - each with statute authorized financial penalties. A summary judgement was issued in favor of the plantiffs and denied for the defendants. The appeal of Qualified Immunity was denied by the Circuit court and affirmed by the 11th Cir. appeals court. The suit was for violation by the code officer(s) and the city of the rights given by the Constitutional amendments, the statutes mentioned and for slander and defamation. The summary judgement was granted in total except forthe defamation. There are other Florida laws that do not allow searches onto private property or enforcable fines that affect the property resided on by the owner - Florida's homestead law. These were not even part of this lawsuit as the plantiffs were only leasing the property.

All the items you mention were overcome in the suit. There was a high 6 figure settlement involved. What other information would be needed to determine a statute of limitations for filing in the circuit court?

 

[CdwJava]

By your frequent mention of "homestead" I am wondering what part that plays into this. Why was the code enforcement officer there? Is this "homestead" on someone else's land, or on government property? Is it a structure built without the proper permits?

As tranqulitiy mentioned, there can be a lot of reasons why the officers made entry. The fact that you say they had no cause and imply that your homesteaded property is somehow protected from their intrusion does not make it so.

- Carl

 

[tranquility]

"Almost idential" hmm... where is your 5th amendment violation? (Not to say there is a 4th amendment violation, but I know what you are claiming here.)

Case law on civil rights is replete with the determination that a mere violation of a civil right does not lead to damages. That's not to say a civil right violation can't cause damages which are compensible, just that violation does not equal damage. Some states have statutory amounts for violations. You must plead them. Please provide a citation of the case you are talking about as I can guar-an-tee it was not a code enforcement officer entering a premises without a warrant that generated a six figure judgment without a lot more.

I agree that a qualified immunity can be overcome. My point is that it is a fairly technical argument with a lot of issues and if you cannot find the SOL of filing on the internet in a very short time--there is no way you would be able to file and overcome the defense. And, if you are going to get an attorney, why are you writing to the forum?

Look, I don't see you being successful in a pro per suit. Civil rights lawsuits are hard for attorneys, let alone laymen. See an attorney. He will advise you and may take the case on if he thinks it is a winner, even with low damages, because of the law I mentioned on attorneys fees.

 

[midflamagi]

Thanks again Tranquility. Your post is well taken... but it gave me a chuckle... the case I mentioned was pro se. The property leasor did his own research and filed all the documents. He made some mistakes but he won at every important step of the process. It would not be my intention to attempt that without legal help. I will get the case information and post it on this site so you can access it. Thank you...

 

[midflamagi]

By your frequent mention of "homestead" I am wondering what part that plays into this. Why was the code enforcement officer there? Is this "homestead" on someone else's land, or on government property? Is it a structure built without the proper permits?

As tranqulitiy mentioned, there can be a lot of reasons why the officers made entry. The fact that you say they had no cause and imply that your homesteaded property is somehow protected from their intrusion does not make it so.

- Carl

Thanks for your post CdwJava - I'm taking about a normal home on a normal city lot. My son is a local police officer and he cannot enter any premises without the permission of the owner/occupant or a warrant - unless there is probable cause, in some situations. That would be a criminal situation - No administrative officer can enter even with probable cause - that is only a reason to obtain a warrant.

Homestead in Florida and several other states is a Constitutional provision providing certain "rights" for claimed property that is not afforded unclaimed property. In order to claim homestead, the property much be occupied by the owner who uses the property as his primary residence. Any residence can qualify in Florida but only one homestead per owner. This Constitutional law is why some individuals with large judgements against them in other states move to Florida and purchase large estates.

I'll try to explain Florida Homestead in as few words as possible. The Florida Constitution Article 10 Sec. 4 provides: Homesteaded property - "There shall be exempt from forced sale under process of ANY court, and no judgment, decree or execution shall be a lien thereon"... the only exceptions are taxes and contracted items (mortgage, contractor's work and/or materials) This is one of the (if not THE) strongest homestead law in the United States.

The Florida Statutes under chapter 162 that give counties and cities authority to create a code enforcement department specifically exclude any homesteaded property in Florida from any monetary penalties including court judgement or liens. No lien or judgement can cloud the title of homesteaded property in Florida and prevent it from being sold free and clear. There is case law and Constitutional law quoted and summed up in opinions by several Attorneys General - no code enforcement officer has any authority to enter any residential or business property without occupants permission or a search warrant. Homesteaded property requires a warrant (administrative) and the owners permission.

 

[CdwJava]

My read includes that there are some exceptions to your interpretation:

Three types of creditors can still force the sale of a homestead to collect debts owed to them. These are:

- The State of Florida and its counties or municipalities, to collect past due property taxes;

- Parties to whom the property was specifically pledged as credit for a mortgage;

- Mechanics who are owed money for work performed in repairing or improving the property.

My read indicates that it is a protection from most forms of creditors, but not against other provisions of the law concerning building or property safety, etc.

Why was the code enforcement officer presumably there? What was his stated purpose?

I can't speak for CE officers in FL, but in my state there are numerous circumstances where they can make entry for inspections with exigency, consent, with a warrant/court order, or with prior proper notification (dependin gon the nature of the inspection).

(Oh, and you forgot to mention another cause for entry that your son likely knows - exigency. Consent, warrant, and exigent circumstances can justify a warrantless entry.)

- Carl

 

[midflamagi]

I don't think there needs to be an interpretation - there are many Florida cases where it's been tried. the Constitution Article is very short and to the point. It has been challenged but the plain language "interpretation" has been upheld by many lower courts, appeals courts and the Florida Supreme Court. Most situations challenging it came from cities and counties trying to overcome it's plain language. Your read is correct as to the 3 mentioned exceptions.

As far as other creditors - none can touch it and homesteaded property is exempt from the statutes providing fines, leins or judgements. It's even been challenged by law enforcement under the RICO act, the courts upheld the homesteaders right that the homesteaded property was not subject to forfeiture. This, even if there was no question that a crime was committed on the property. This is all contingent on the fact that the property in question has been declared as homestead under Article 10, Sec. 4 of the Florida Constitution. FS 222 gives the details on designating a homestead. It requires only a few items to be included in the declaration, that the signatures be notarized and the form filed with the recorder of the same county as the property. All costing less than 20.00.

It is interesting that a case in California is the basis for code enforcements limitations in warrantless searches of residences cited in 4th amendment cases all over the US. Camara vs. MUNICIPAL COURT, 387 U.S. 523 (1967) (San Francisco CA).

 

[CdwJava]

I'm still curious, why was the code enforcement officer ostensibly there? And why does he say he called the police to make entry?

- Carl