Opposition Brief — Grimm v. Spell

Go)

a

No. 04-168

IN THE

Supreme Court of the United States

JOSEPH LEE GRIMM,

Petitioner.

v.

CHARLES S. SPELL, a/k/a STEVE SPELL, et ai.,

Respondents.

ON PETITION FOR A Writ OF CERTIORARI TO THE

Unitep STATES Court OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENTS

PETER VASQUEZ AND PROSSCOVIA BIRIBAWA

WESLEY R. PARSONS

Counsel of Record

Jack R. REITER

ApDoRNO & Yoss, P.A.

2601 South Bayshore Dr.

Suite 1600

Miami, Florida 33133

(305) 858-5555

Counsel for Respondents

Peter Vasquez and

Prosscovia Biribawa

190522 cel

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES ............

a ae eee ee errs ee

REASONS FOR DENYING THE PETITION ....

SIAIEMEN: OF THE CASE 2... . ccc ccsceess

ARGUMENT

I.

II.

Grimm Has Not Identified Any Basis For This

Court’s Limited Jurisdiction. ............

The Eleventh Circuit Correctly Affirmed

Dismissal Of Grimm’s Complaint Because The

Law Governing The Department’s Right To

Inspect Dooryard Citrus Leaves Was Not

Established At The Time Of The Alleged

Fourth Amendment Violation. ...........

A.

Respondents reasonably believed that

they were authorized to conduct a

warrantless search under the exigent

circumstances exception to the warrant

Nr A ass cncee'a baeaekan eat

The Department employees reasonably

believed that the inspection of Grimm’s

tree was exempt from the warrant

requirement under the traditionally

regulated sector exception. ..........

Page

13

il

Contents

III. The Eleventh Circuit Correctly Concluded

That The Mere Entry Onto Grimm’s

Property To Inspect Citrus Leaves Did Not

Constitute A Taking As Defined In The Fifth

And Fourteenth Amendments To The United

a ee

IV. The District Court Correctly Dismissed

Grimm’s Equal Protection Claim Because

Grimm Did Not Allege Differential Treatment

Or Discriminatory Motive. ..............

CAGRMMEEUEY sc is videuxke cea the a cane Cares

Page

17

19

20

lil

TABLE OF CITED AUTHORITIES

Page

Cases:

Barts v. Joyner,

865 F.2d 1187 (11th Cir. 1989) .............. 7

Blue v. Koren,

ge Ge ty Ce a). 13

Camara v. Municipal Court of the

City and County of San Francisco,

BF We RP REPOED osc ccesscccsescevienes 9, 10, 16

Cassettari v. County of Nevada,

oe ee Le ) nn 18

Corn v. City of Lauderdale Lakes,

95 F.3d 1066 (11th Cir. 1996) ....... er. 17-18

Courson v. McMillian,

929 ©.20 1479 (ith Cir. 1999) 2... 2... cece 7

Cross v. State of Alabama, State Dep t of Health

and Mental Retardation,

OP P.56 TOPO (11 Cir, 1995) ... 2... cc cnccens 19-20

Denny v. Conner,

462 So. 2d 534 (Fla. lst DCA 1985) .......... 11

Dep t of Agriculture v. Haire,

836 So. 2d 1040 (Fla. 4th DCA 2003) ......... 5-6

Dep t of Agriculture v. Miami-Dade County,

790 So. 2d 555 (Fla. 3d DCA 2001) ........... 15, 16

iv

Cited Authorities

Page

Dep t of Agriculture v. Polk,

ee a Se Pere errr 14

Dep t of Agriculture v. Pompano Beach,

792 So. 2d 539 (Fla. 4th DCA 2001) .......... 3, 11

Dep t of Agriculture v. Sun Gardens, LLP.

780 So. 2d 922 (Fla. 2d DCA 2001) .......... 1]

Haire v. Fla. Dep t of Agriculture,

S70 So. 26 174 (Fim. 2008) 2... ccs ccs sccecs 3, 11

Hope v. Pelzer,

eR re 6, 8,9

Hutton v. Strickland,

SIS F.26 1531 Ct Cor, 199G) 2... 0c ccc caes. 7

Jacobson v. Commonwealth of Mass.,

ee See OW EE oka oO 45-05 Nos wo Oe ee 10

Kroplin v. Truax,

EGS IVE. O96 (UO 1DZS). nw ccc ccescccvens 1]

LeRoy v. Illinois Racing Bd.,

ce vies, Le 2 | ee 15

Loretto v. Teleprompter Manhattan CATV Corp.,

Se Wi SEP UE 6504 ON RENEW 17, 18

Malley v. Briggs,

ee Re) | ee errr en ee rarer 7

Cited Authorities

Page

Marshall v. Barlow’, Inc.,

Ek et | rrr ere rere re 13

Moore v. State,

oo fe ie ree 15

New York v. Burger,

gs reer rerr aT rer sere 14

Nordmann v. Florida Dep t of Agriculture,

473 So. 2d 278 (Fla. Sth DCA 1985) .......... 11

North Am. Cold Storage Co. v. City of Chicago,

BRE UA SUR EEOED veuunndsancenctsaves ves 10

Richardson v. Baldwin,

124 Fla. 233, 168 So. 255 (Fla. 1936) ......... 14

Sapp Farms, Inc. v. Dep t of Agriculture,

761 So. 2d 347 (Fla. 3d DCA 2000) .......... 11

Schwartz v. Pridy,

oe Ee) Ee Deere eer rere 15

Showers v. Spangler,

og & FoF tk eee rere rer 14

Tillman v. Coley,

yw Riggil, |e 2) | ere 7

United States v. Argent Chem. Lab, Inc.,

ee yg, Ch | | ee reer eye 13

vi

Cited Authorities

Page

United States v. Branson,

iB e Bieg fe Se) errr rer err 14

United States v. Cobb,

pew Berti Te By) ee 14

United States v. Lanier,

ek | rere rrr ere 8

Winters v. Board of County Comm'rs,

oe Fe rere rere 15

Zeigler v. Jackson,

716 F.2d S47 (Lith Cir. 1983) 2.6... ccs cece 7

Florida Constitution:

EE OP oc keh 4A Kew ke eee ees 14

United States Constitution:

i ios be wanes Cees 7,9, 10, 15

re me Cer tem 6, 17, 19

Teer eee 9

Fourteenth Amendment ......................5. 17

Vii

Cited Authorities

Page

Statutes:

Chapters 570-604, Florida Statutes (2000 ........ 13

Chapter 581, Florida Statutes ................... 13, 14

Section 581.031(7), Florida Statutes (2000) ...... 13

Section 581.031(15), Florida Statutes (2000) ..... 13

Section 581.031(17), Florida Statutes (2000) ..... 13

Section 581.111, Florida Statutes (2000) ......... 11

Other Authorities:

Chapter 00-308, Laws of Florida ............... 13

Chapters 5A-5L, Florida Administrative Code .... 13

&

|

INTRODUCTION

Petitioner, Joseph Lee Grimm, has not identified any

basis for invoking this Court’s very narrow certiorari

jurisdiction. He has not alleged any conflict among the

Circuits or asserted the need for resolution of a question of

federal law that has not been previously addressed. On the

contrary, this Court has already examined and crafted the

law regarding the primary issue presented in his Petition—

the parameters of qualified immunity afforded a government

official. Moreover, the Eleventh Circuit Court of Appeal,

which affirmed the dismissal of Grimm’s action on the basis

of qualified immunity, had the benefit of, and applied, this

Court’s most recent pronouncement of applicable law when

it reached its appropriate conclusion. Therefore, it is apparent

that Grimm is seeking de novo review of the case presented

without identifying any basis for invoking this Court’s

jurisdiction.

Notwithstanding the lack of any basis for invoking this

Court’s discretionary review, the Eleventh Circuit’s

conclusion is completely correct. Respondents, Prosscovia

Biribawa and Peter Vasquez, employees of the Department

of Agriculture and Consumer Services (the “Department’’),

reasonably believed they were authorized to enter Grimm’s

yard to look at leaves on citrus trees pursuant to a statutory

grant of authority and the Florida Commissioner of

Agriculture’s clear declaration of emergency. At the time the

Department employees entered Grimm’s yard for this limited

purpose, no Florida Court had contradicted the statutory

authority to conduct a warrantless search and, in fact, multiple

Florida courts recognized the exigent circumstances posed

by citrus canker that required immediate inspection and tree

removal. The Court should deny the Petition.

2

REASONS FOR DENYING THE PETITION

The Court should deny the Petition because the law was

not so well-settled at the time the Department employees

entered Grimm’s property that they should be denied qualified

immunity and held individually liable for alleged Fourth

Amendment violations.

When the Department employees entered Grimm’s

property for the limited purpose of examining leaves on a

citrus tree, Florida law clearly authorized the limited intrusion

due to exigent circumstances presented by citrus canker’s

onslaught. That a Florida state court years later decreed that

state authorities needed a warrant to inspect dooryard citrus

cannot override qualified immunity when contrasted with

existing Florida law at the time the Department employees

conducted the subject inspection.

Furthermore, the entry onto property for a limited

inspection of a citrus tree does not constitute a taking which

requires compensation under the Fifth Amendment. There is

no seizure of property or deprivation of the economic benefit

of property resulting from the inspection.

Finally, Grimm cannot assert an equal protection claim

because he has not alleged membership in any protected class

or that he received unequal treatment from the Department.

STATEMENT OF THE CASE

Because the United States District Court, Middle,

District, disposed of this case at the pleading stage, all of

Grimm’s allegations are accepted as true and correct. For

the benefit of the Court, however, the following is a history

3

of Florida’s battle with citrus canker and the Citrus Canker

Eradication Program (“CCEP”) enunciated by Florida’s

Supreme Court in Haire v. Fla. Dept of Agriculture, 870

So. 2d 774 (Fla. 2004), citing Dep t of Agriculture v. Pompano

Beach, 792 So. 2d 539, 541-42 (Fla. 4th DCA 2001):

Citrus canker was discovered in Florida in

1914 and eradication programs continued through

the mid 1930s. In the mid 1980s, an Asian strain

of citrus canker, xanthomonas axonopodis pv.

citri., the strain of citrus canker at issue in this

case, was discovered in Manatee County. It was

considered eradicated in 1992 and the eradication

program halted in 1994. However, in 1995 an

outbreak was discovered around the Miami

International Airport.

Citrus canker is a disease that is caused by a

bacterial organism that attacks the fruits, leaves

and stems of a citrus plant. It causes defoliation,

fruit drop and loss of yield. It also causes

blemishes on the fruit and a loss of quality. In

severe cases, it can cause girdling of the stems

and death of the tree.

Stem lesions can survive for many years and

are capable of producing bacterial inoculum eight

to ten years later. Although symptoms of citrus

canker may be seen seven to fourteen days after

infection, the maximum visualization does not

occur until approximately 107 to 108 days after

infection. This makes it difficult to control a

disease which easily spreads through wind-driven

rain or contamination of equipment or plant

material.

At the time that citrus canker, Asian strain,

was discovered in Miami, the citrus canker

eradication program in place called for the

destruction of trees that were infected or were

within a 125 foot radius of an infected tree. The

125 foot radius was adopted in the 1980s as a

result of a study conducted in Argentina. However,

that study did not take into account what would

happen in an urban setting.

In Miami-Dade County, the destruction of

citrus trees within a 125 foot radius of an infected

tree was not reducing the occurrences of citrus

canker. Therefore, the Department decided to

initiate a study that would measure the distances

that citrus canker, Asian strain, would spread in

South Florida. The study kept track of over 19,000

trees in four sites and determined the distance

between the diseased trees and the newly infected

trees. The study showed that the eradication

program which used the 125 foot radius was

inadequate because it only captured about thirty

to forty-one percent of infection that spread from

a diseased tree.

The results of the study were presented at a

meeting in Orlando attended by approximately

twenty individuals and scientists. Those at the

meeting examined the findings. After considering

a range of distances between diseased trees and

newly infected trees at the various sites, those

present determined that in order to destroy ninety-

5

five percent of newly infected trees, it was

necessary to destroy trees within a 1900 foot

radius of a diseased tree, thereby creating a buffer

zone which would prevent citrus canker from

spreading any further.

In March 1999, the Citrus Canker Technical

Advisory Task Force, a body of regulatory

individuals, scientists and citrus industry

representatives who deai with the issue of citrus

canker, unanimously recommended that the

Department adopt a policy to destroy trees within

a 1900 foot radius of a diseased tree in order to

eradicate citrus canker.

Florida courts have wrestled with various issues pertaining

to the CCEP and the balance between fighting a virulent

pathogen that spreads quickly and threatens both the State’s

citrus industry and residents’ welfare and affording citizens

the highest possible measure of due process and access to

judicial review.

The case at hand stems from Grimm’s assertion that the

Department employees had no right to enter his yard and

inspect his citrus trees without a search warrant. At the time

of the inspection, no Florida court had required a warrant

for such inspections or declared such inspections

unconstitutional. In 2003, however, three years after the

inspection at issue in this case, Florida’s Fourth District Court

of Appeal analyzed the warrant requirement and concluded

that certain parts of a yard may be deemed curtilage and

concluded that the Department must procure a warrant to

inspect trees for citrus canker. Dep t of Agriculture v. Haire,

6

836 So. 2d 1040, 1054-5 (Fla. 4th DCA 2003). Nonetheless,

the district court dismissed Grimm’s lawsuit and the Eleventh

Circuit affirmed the dismissal.

ARGUMENT

I. GRIMM HAS NOT IDENTIFIED ANY BASIS FOR

THIS COURT’S LIMITED JURISDICTION.

While the parameters for Supreme Court Jurisdiction are

malleable, a litigant seeking this Court’s review must

typically establish a threshold basis for jurisdiction.

Ordinarily, such jurisdiction arises when a conflict exists

among the Circuit Courts of Appeal, when a court of last

resort decides a question of federal or constitutional law that

conflicts with this Court’s jurisprudence, or when a decision

depends upon an interpretation of federal law that should be

decided by this Court but remains unresolved or an

interpretation that violates federal law. None of the

jurisdictional prerequisites are implicated in this case.

On the contrary, this Court addressed the contours and

scope of qualified immunity in Hope v. Pelzer, 536 U.S. 730

(2002). Therefore, qualified immunity jurisprudence is

settled, and there is neither a split-among circuits nor an

unresolved question of federal law. Indeed, Hope arose out

of the Eleventh Circuit, which had direct experience with

this Court’s application of the appropriate qualified immunity

standard. Moreover, the Eleventh Circuit applied Hope when

it dismissed Grimm’s Complaint, and Grimm does not now

raise any issue suggesting that the Eleventh Circuit erred in

that application. Similarly, Grimm has not alleged or

established a violation of the Fifth Amendment or the Equal

Protection clause. Therefore, this Court should decline to

extend jurisdiction and reject his Petition.

7

Il. THE ELEVENTH CIRCUIT CORRECTLY

AFFIRMED DISMISSAL OF GRIMM’S

COMPLAINT BECAUSE THE LAW GOVERNING

THE DEPARTMENT’S RIGHT TO INSPECT

DOORYARD CITRUS LEAVES WAS NOT

ESTABLISHED AT THE TIME OF THE ALLEGED

FOURTH AMENDMENT VIOLATION.

Qualified immunity affords broad protection to “all but

the plainly incompetent or those who knowingly violate the

law.” See Malley v. Briggs, 475 U.S. 335, 341 (1986);

Hutton v. Strickland, 919 F.2d 1531, 1537 (11th Cir. 1990);

Tillman v. Coley, 886 F.2d 317 (11th Cir. 1989). Qualified

immunity is evaluated by an objective standard. Courson v.

McMillian, 939 F.2d 1479, 1487 (llth Cir. 1999).

A government official proves that he acted within

discretionary authority by showing objective circumstances

which would compel the conclusion that the actions were

undertaken pursuant to performance of duties and within the

scope of his authority. /d. (citing Zeigler v. Jackson, 716 F.2d

847, 849 (11th Cir. 1983)).

To defeat the qualified immunity defense, Grimm had

to “prove the existence of a clear, factually defined, well

recognized right of which a reasonable [government official]

should have knowledge” and that a reasonable official would

have understood that his actions would have violated that

right. See Barts v. Joyner, 865 F.2d 1187 (11th Cir. 1989),

When the Department employees entered Grimm’s yard

for the limited purpose of inspecting leaves on citrus trees,

they operated under a good faith belief that exigent

circumstances authorized the inspection without a warrant.

Even if a law enforcement officer engages in conduct that

8

violates a person’s constitutional rights, he or she may avoid

personal liability if it was not reasonably clear that the

conduct at issue violated such a right. Qualified

immunity operates to “ensure that before they are subject to

suit, officers are on notice their conduct is unlawful.”

Hope, 536 U.S. at 739.

Following Hope, this Court narrowed the application of

qualified immunity to some degree, but did not undermine

the extraordinary protection from suit the doctrine provides.

Under the Hope decision, evaluating qualified immunity

requires a Court to first determine whether a constitutional

violation exists. If so, then the Court considers whether the

contours of that right are “sufficiently clear that a reasonable

official would understand that what he is doing violates that

right.” Jd. at 739. Under this analysis, an official must have

“fair warning” that his or her conduct deprived the victim of

a constitutional right. Jd. at 739 (citing United States v. Lanier,

520 U.S. 259 (1997)). Hope narrowed the scope of qualified

immunity slightly by holding that prior case authority need

not be materially similar in order to serve as fair warning

that certain conduct violates a person’s constitutional rights.

Hope, 536 U.S. at 739. In order to apply Hope, however, it is

imperative to analyze the case within the context of its facts

and to recognize that certain fundamental rights are so

obvious, that fair warning is presumed.

In Hope, prison guards chained a prisoner to a hitching

post for seven hours, depriving him of water and food and

taunting him as he suffered. The Court concluded that such

treatment, which transpired after alleged misconduct by the

inmate, served no true penal purpose and violated the

prisoner’s Eighth Amendment right to be free from cruel and

unusual punishment. Jd. at 738. Reversing the Eleventh

9

Circuit’s analysis and holding as too rigid, the Court

determined that basic principles of fundamental human

dignity need not be articulated by prior judicial authorities

to provide fair warning to law enforcement officials that the

subject conduct violated the Eighth Amendment. /d. at 738.

The case at hand, however, is fundamentally different

and Hope does not undermine the Eleventh Circuit’s

conclusion. Indeed, unlike the conduct condemned in Hope,

which violated basic principles of human dignity, the conduct

at issue in this case—the inspection of citrus trees in

someone’s yard—constituted at worst a minimal intrusion

that, to the Department employees, could not be perceived

as a Fourth Amendment violation. Moreover, existing Florida

statutes, administrative codes, and case authority makes

reasonable the Department employees’ belief that such a

warrantless search was authorized and lawful.

A. Respondents reasonably believed that they were

authorized to conduct a warrantless search

under the exigent circumstances exception to the

warrant requirement.

Grimm relies primarily on the landmark decision of

Camara v. Municipal Court of the City and County of San

Francisco, 387 U.S. 523 (1967), which he asserts put the

Department employees on fair notice that their actions were

unlawful. Camara, however, was factually distinct and

contained exceptions to the warrant requirement, such that

Respondents had good reason to believe that Camara did

not prohibit their conduct.

Camara did not clearly establish that warrantless

searches under longstanding state statutory authority in an

10

agricultural plant disease emergency were unreasonable under

the Fourth Amendment. Moreover, Camara did not provide

fair warning to the Department employees that mere entry

and inspection of trees violated the Fourth Amendment.

Camara did not involve an emergency situation as is always

present with a rapidly-spreading disease. In Camara, an

ordinance permitted city officials to enter “any building,

structure, or premises” to “perform any duty imposed on

them.” 387 U.S. at 526. The intrusion in Camara was far

more invasive, because there, the statute allowed the entrance

into a dwelling without any probable cause for inspection.

Id. Here, the Department employees, in the midst of a plant

disease emergency that seemingly provided probable cause

for inspecting citrus trees, inspected only dooryard citrus,

without entering any dwelling place.

Moreover, there are two exceptions to Camara where

courts have dispensed with warrants for some searches that

appeared to apply. First, the Camara Court recognized that

exigent circumstances would obviate the need for a warrant:

“Since our holding emphasizes the controlling standard of

reasonableness, nothing we say today is intended to foreclose

prompt inspections, even without a warrant, that the law was

traditionally upheld in emergency situations.” The seizure

of unwholesome food products or to prevent the spread of

disease constitutes an exigent circumstance for which a

warrantless search or seizure is appropriate. 387 U.S. at 539.

The Supreme Court cited cases where the emergency involved

unwholesome food, human disease, and animal disease.

See North Am. Cold Storage Co. v. City of Chicago, 211 U.S.

306 (1908) (seizure of unwholesome food); Jacobson vy.

Commonwealth of Mass., 197 U.S. 11 (1905) (compulsory

smallpox vaccination). Indeed, courts have historically

applied this analysis when facing emergencies that threaten

11

livestock, even if such emergencies do not pose an imminent

threat to human life. For example, in Kroplin v. Truax, 165

N.E. 498 (Ohio 1929), the Court recognized the need for

immediate destruction of tubercular cattle. So, too, did

Florida law require the immediate destruction of a plant pest

that poses an emergency. See § 581.111, Fla. Stat. (2000)

(defining “emergency” as “any situation in which the

department has declared a plant pest or noxious weed to be a

public nuisance or when in the opinion of the department a

plant pest or noxious weed endangers or threatens the

horticultural and agricultural interest of the state’’).

The Florida Legislature, the Commissioner of

Agriculture, and Florida courts have characterized citrus

canker as an emergency that required immediate action.

In Denny v. Conner, 462 So. 2d 534, 536-37 (Fla. Ist DCA

1985), the court recognized that “the threat to the public

interest in the citrus industry represented by citrus canker is

of sufficient gravity and urgency that the effect of the

immediate final order of the department should not be further

stayed by this court.” See Nordmann vy. Florida Dept of

Agriculture, 473 So. 2d 278, 279 (Fla. Sth DCA 1985)

(approving the Department’s emergency measures, and

rejecting the owner’s contention that the Department has

“failed to show imminent danger justifying use of the state

police power to destroy the trees”); Sapp Farms, Inc. v. Dep t

of Agriculture, 761 So. 2d 347, 348-49 (Fla. 3d DCA 2000)

(relying on Denny and upholding the Department’s ability to

remove trees exposed to citrus canker); Dep t of Agriculture

v. Sun Gardens, LLP, 780 So. 2d 922, 924 (Fla. 2d DCA 2001)

(recognizing the Department’s finding of “possibly

devastating effect of citrus canker on the citrus industry”);

Dep t of Agriculture v. Pompano Beach, 792 So. 2d 539, 542

(Fla. 4th DCA 2001); Haire, 836 So. 2d 1047-50 (recognizing

12

Legislature’s ability to protect citrus industry in agricultural

emergency).

On June 15, 2000, in adopting amendments to the plant

disease laws of Florida, the Florida legislature recognized

the increasingly-acute nature of this emergency. The

legislature made several findings:

* anemergency exists in the South Florida area

regarding the spread of citrus canker, a

bacterial disease that damages fruit, weakens

and eventually kills trees, is highly

contagious, and the presence of which causes

quarantines to be imposed on the shipment

of fresh fruit;

* joint state and federal attempts to eradicate

citrus canker have so far been unsuccessful;

¢ despite destruction of citrus trees infected

with citrus canker and of citrus trees within

125 feet of canker-infected trees, citrus canker

has spread at an alarming rate and is now

present throughout Miami-Dade County and

Broward County;

¢ if not eradicated quickly, citrus canker will

spread to other parts of the state and may

destroy the citrus industry and dooryard citrus

throughout Florida;

* recent scientific studies have shown that citrus

trees as far as 1,900 feet from infected citrus

13

trees will develop the disease from wind-

blown rain or by other means.

See Ch. 00-308, Laws of Fla. No court had challenged the

Legislature’s findings at the time the Department employees

inspected Grimm’s tree.

B. The Department employees reasonably believed

that the inspection of Grimm’s tree was exempt

from the warrant requirement under the

traditionally regulated sector exception.

Second, the status of citrus as a traditionally regulated

sector in the livelihood and economy of Florida made

warrantless searches seemingly plausible. This Court had

recognized that a search warrant is not generally required in

state sectors that have been pervasively regulated and subject

to close supervision and inspection. See Marshall v. Barlow,

Inc., 436 U.S. 307 (1978). Accord Blue v. Koren, 72 F.3d

1075, 1080 (2d Cir. 1995) (extensive warrantless surveys and

inspections valid regardless of motive because of strong

governmental interest and pervasively regulated nursing

industry); United States v. Argent Chem. Lab, Inc., 93 F.3d

572, 574 (9th Cir. 1996) (warrantless search and seizure of

veterinary drugs valid because of strong state interest in

controlling misuse).

Agriculture, plant pests, and citrus have been pervasively

regulated in Florida. See generally Chs. 570-604, Fla. Stat.

(2000), and especially Chs. 570 and 581; Chs. 5A-5L,

Fla. Admin. Code, and especially Ch. 5B. In particular, the

Florida legislature had authorized the Department to control

and eradicate plant diseases. See § 581.031(7), (15), (17),

Fla. Stat. (2000). Indeed, Florida had fought against citrus

14

canker and other agricultural pests for many years, and

agriculture, particularly disease-susceptible plants, have been

regulated in Florida for over 100 years. See Fla. Const. of

1885, art. iv, § 20 (creating post of Commissioner of

Agriculture); Ch. 581, Fla. Stat. (historical note documents

creation of State Plant Board in 1927 to control agricultural

pests); Richardson v. Baldwin, 124 Fla. 233, 168 So. 255

(Fla. 1936) (reciting duties of State Plant Board).

The destruction of trees infected or exposed to citrus canker,

under the power conferred in the Florida Statutes, was

recognized by the Florida Supreme Court after the initial 1985

outbreak of canker in this state. Dep t of Agriculture v. Polk,

568 So. 2d 35, 37-40 (Fla. 1990).

In order for warrantless administrative search to be

reasonable, there must be a substantial state interest behind

the regulatory scheme; the search is necessary to further that

scheme; and the authorizing statue is an adequate substitute

for the warrant requirement in giving notice to owners and

limiting discretion of those conducting the search. See New

York v. Burger, 482 U.S. 691, 702-704 (1987) (warrantless

search of automobile junkyard valid because conducted

pursuant to statute, necessary to further state interest in

detecting stolen cars, and discretion of officer conducting

the search limited); Showers v. Spangler, 182 F.3d 165, 172

(3d Cir. 1999) (warrantless administrative search of

taxidermist’s business would be valid if taxidermy were

pervasively regulated business); United States v. Cobb, 975

F.2d 152, 156 (Sth Cir. 1992) (warrantless administrative

search of trucking company justified because part of

company’s business included pervasively regulated motor

vehicle salvage operation); United States v. Branson, 21 F.3d

113, 116 (6th Cir. 1994) (warrantless administrative search

of auto repair shop valid because of business’ statutory

15

regulation); LeRoy v. Illinois Racing Bd., 39 F.3d 711, 713-

14 (7th Cir. 1994) (warrantless administrative search of

racehorse owner’s automobile at race track valid because

horse racing pervasively regulated industry); Schwartz v.

Pridy, 94 F.3d 453, 457 (8th Cir. 1996) (warrantless

administrative search justified because auto parts industry

was pervasively regulated); Winters v. Board of County

Comm'rs, 4 F.3d 848, 853 (10th Cir. 1993) (warrantless

administrative search of pawn ~’._, valid because pawnshops

are pervasively regulated); Moore v. State, 442 So. 2d 215,

216 (Fla. 1983) (warrantless administrative searches of

automotive repair shops constitutional). It was not clearly

established that warrantless citrus canker inspections did not

fit within this framework at the time the Department

employees inspected Grimm’s trees.

Moreover, to the Department employees, working in the

field and unschooled in the nuances of Fourth Amendment

jurisprudence, Camara does not support a holding that the

law was Clearly established that warrantless searches under

the CCEP were unconstitutional at the time of the inspection.

On June 19 and 20, 2000, when the Department employees

entered Grimm’s property, no Florida court had declared the

applicable statutes or rules unconstitutional on Fourth

Amendment grounds. Two circuit court judges did

subsequently rule that warrantless searches were

unconstitutional. One decision was vacated on appeal, and

the other withstood scrutiny. See Dept of Agriculture v.

Miami-Dade County, 790 So. 2d 555 (Fla. 3d DCA 2001)

(vacating trial court decision); Dep t of Agriculture v. Haire,

836 So. 2d 1040 (Fla. 4th DCA 2003), aff'd, 870 So. 2d 774

(Fla. 2004). In Miami-Dade County, the earlier decision,

Judge Gerald Cope, concurring, opined that the Third District

should address the warrant issue and intimated that a warrant

16

is not required under the circumstances presented. As he

wrote:

The County and the City appear to take the

position that the entirety of a homeowner’s yard

qualifies as cartilage and that the Department

cannot enter into any part of the yard without a

search warrant. That position is incorrect.

Id. at 559. That the majority of the Third District Court of

Appeal at that time decided not to reach the warrant issue is

irrelevant for purposes of qualified immunity analysis.

Indeed, if a member of Florida’s Third District Court of

Appeal, in hindsight and with considerable deliberation,

believed that a warrant was not required in every case when

the Department inspected citrus trees on a person’s yard, then

it was reasonable for the Department employees in the

field to believe that they were not violating Grimm’s

Fourth Amendment rights when they conducted their

inspection one year earlier.

Grimm’s argument that the Eleventh Circuit disregarded

federal law is misplaced. Both the district court and the

Eleventh Circuit Court of Appeal considered all constitutional

law, both from federal and state courts in the context of

determining whether Camara had ever been applied in

circumstances of searches pursuant to the CCEP. Nonetheless,

no federal court at that time, or since, has opined on the issue

whether a warrant is required for a citrus canker inspection.

The law that has developed since the time of the inspection

of Grimm’s property is found in Florida state appellate court

decisions exclusively. Therefore, the Eleventh Circuit

correctly evaluated and applied Florida as well as federal

law pertaining to the CCEP and the warrant requirement

generally.

17

il. THE ELEVENTH CIRCUIT CORRECTLY

CONCLUDED THATTHE MERE ENTRY ONTO

GRIMM’S PROPERTY TO INSPECT CITRUS

LEAVES DID NOT CONSTITUTE A TAKING AS

DEFINED IN THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION,

Grimm argues that that the mere inspection of his trees

and entry into his yard constituted a taking requiring

compensation under the Fifth Amendment to the United

States Constitution. The District Court held, and the Eleventh

Circuit affirmed, that Grimm had failed to plead a taking

because no property had been taken in the inspection.

Grimm argues that the search itself, without more,

constituted a taking in both the regulatory and physical sense.

There was a physical taking, Grimm argues, because he was

deprived of his “right to exclude others” during the search.

The concept of a taking under the Fifth Amendment does

not extend as far Grimm contends. Under Grimm’s logic,

every search—indeed even every infringement of a

constitutional right—would constitute a taking requiring

compensation as an inverse condemnation. This removes any

distinction between inverse condemnation and search and

seizure.

Grimm did not plead either a physical or regulatory

taking. A physical taking claim requires a “permanent

physical occupation,” Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419, 434 (1982), which was not

alleged. A regulatory taking claim requires that the property

owner be denied “economically viable use of his land.” Corn

v. City of Lauderdale Lakes, 95 F.3d 1066, 1072 (11th Cir.

18

1996). Grimm does not plead that any economically viable

use of his property was denied by the citrus canker inspection,

and he would have no basis for such a contention.

The philosophy of the courts has been to consider a

search a search and a seizure a seizure:

Cassettari also argues that when the County took

his property without paying him for it, the County

violated his fourth amendment right to be secure

against unreasonable seizures. This argument is

without merit. A claim for the taking by a state of

private property for public use without just

compensation is properly asserted under the fifth

and fourteenth amendments.

See Cassettari v. County of Nevada, 824 F.2d 735 (9th Cir.

1987). Grimm suffered a search, but not a seizure. Case law

does not extend to consider every purported violation of a

liberty interest to be an act of inverse condemnation.

Grimm also argues that the possibility of re-entry onto

land one or twice a year in the future amounts to a permanent

physical occupation. The mere possibility of a future search

does not amount to a permanent or continuous taking, as was

addressed in Loretto. There is no continuous passing to and

fro. The inspections are rare and irregular, and will cease

with the termination of the CCEP.

Grimm argues that Hope supports his takings claim

because mere novelty does not preclude application of

established legal principles (Petition at 8). This argument

does not change the analysis. First, Grimm has not identified

any existing body of case law that would put anyone on

19

notice, or that even supports the position, that a warrantless

inspection without seizure equates to a taking under Fifth

Amendment jurisprudence. Second, the Department

employees did not seize Grimm, as he argues (Petition at 9).

It was allegedly a deputy sheriff—not the Department

employees—who Grimm complains “seized” his person by

escorting the Department employees. Regardless, the sheriff’s

actions in this case did not amount to a seizure or a restraint

of Grimm’s liberty. Grimm was never under any restraint

and was, by his own factual account, free to leave or enter

his dwelling at any time. A temporary prohibition on the right

to exclude others from one’s yard does not constitute a

seizure or an infringement on one’s personal liberty interest.

The Eleventh Circuit appropriately rejected this argument.

IV. THE DISTRICT COURT CORRECTLY

DISMISSED GRIMM’S EQUAL PROTECTION

CLAIM BECAUSE GRIMM DID NOT ALLEGE

DIFFERENTIAL TREATMENT OR DISCRI-

MINATORY MOTIVE.

Grimm argues that the search of his property violated

his right to equal protection under the Fourteenth Amendment

(Petition at 11). The district court held that Grimm failed to

plead a violation of his right to equal protection because

Grimm did not plead he was treated differently or that there

was any discriminatory motive or purpose. Grimm contends

that the classification of his property as “quarantined” is a

specific class and then confuses the Fourth Amendment with

equal protection principles (Petition at 12). These doctrines

do not overlap, and the Department’s mere inspection of

citrus trees within a zone of exposure to canker-infected trees

does not suggest discriminatory motive or purpose or include

Grimm in a protected class. Cross v. State of Alabama,

20

State Dep t of Health and Mental Retardation, 49 F.3d 1490,

1507-8 (11th Cir. 1995). Again, the Eleventh Circuit

appropriately rejected this argument.

CONCLUSION

For the foregoing reasons, the Petition should be denied.

Respectfully submitted,

WESLEY R. PARSONS

Counsel of Record

JACK R. REITER

ADORNO & Yoss, P.A.

2601 South Bayshore Dr.

Suite 1600

Miami, Florida 33133

(305) 858-5555

Counsel for Respondents

Peter Vasquez and

Prosscovia Biribawa