Brian E. Davis v. City of Milwaukee

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 13, 2016*
Decided May 17, 2016
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15-2978
BRIAN E. DAVIS,
Plaintiff-Appellant,
v.
CITY OF MILWAUKEE, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 13-CV-982-JPS
J.P. Stadtmueller,
Judge.
O R D E R
Stephen Chalstrom, a residential code-enforcement inspector, inspected the
exterior of a vacant building owned by Brian Davis seven times between August 2012
and October 2013. During his visits to the structure, Chalstrom used walkways on the
property, where he saw numerous housing-code violations. Davis sued Chalstrom (and
other people, but they are not relevant on appeal) under 42 U.S.C. § 1983 for damages.
He invoked the theory, among others, that Chalstrom violated his Fourth Amendment
* After examining the briefs and the record, we have concluded that oral argument
is unnecessary. Thus the appeal is submitted on the briefs and the record. See FED. R. A PP.
P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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rights by inspecting the building’s exterior without a warrant. The district court ruled
that Chalstrom is entitled to qualified immunity. That ruling is correct, so we affirm.
At the time of the inspections, the building was vacant and in foreclosure
proceedings. Davis owned the building but never lived there. No tenants occupied or
rented the residence. And Davis had not paid his mortgage on this property since May
2011, so his lender had started foreclosure proceedings in late 2012. On August 8, shortly
before those proceedings started, Chalstrom first inspected the exterior of Davis’s
property. He approached the front door using the walkway connected to the public
sidewalk. He knocked and, receiving no response, left a message. The message said that,
because the home had been vacant for at least 30 days, under a Milwaukee ordinance
Davis had to allow an inspector to observe the inside and outside of the home. He then
inspected the exterior of the home as seen from the front door and from a second
walkway that ran from the public sidewalk along the side of the home to the backyard.
Next he left the property and entered the alley in the rear to examine the garage. From
these observations, Chalstrom saw numerous housing code violations, including
unpainted wooden surfaces, rotted wood on the porch guardrail, broken wooden
fencing, missing handrails, obstructed and faulty gutters, and a missing window pane.
Chalstrom returned to the property six times during the next 14 months for several
reasons. He needed to verify vacancy, to attempt reinspection, to refresh his memory of
the code violations for a Municipal Court proceeding, and to confirm that the house
remained secured. Each time, Chalstrom used the two walkways that were connected to
the public sidewalk. He never passed through any gate or fence that bounded the parts
of sides of the property, or entered the home itself—the front window bore a “no
trespassing” sign. He likely stepped on the front and back lawns. The record contains
photos of the property and code violations. Here is one of the house:

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Proceedings in the district court were protracted after the parties cross-moved for
summary judgment. Davis argued that the area where Chalstrom walked was the
“curtilage” of his home and that he violated the Fourth Amendment by invading the
curtilage without a warrant. Chalstrom responded that a reasonable building-code
inspector would not know that a warrantless inspection of the exterior of an unoccupied
rental building from publicly accessible areas violates clearly established federal law. The
district court denied both motions, citing a fact dispute without mentioning qualified
immunity. Chalstrom then filed an interlocutory appeal, which we dismissed for lack of
jurisdiction. See Davis v. Chalstrom, 595 F. App’x 627 (7th Cir. 2014). At our suggestion,
the district court ordered the parties to submit additional briefing regarding qualified
immunity. The court then granted the defendants’ motion for summary judgment
concluding, among other things, that Chalstrom is entitled to qualified immunity.
In this court Davis principally challenges the district court’s conclusion that
Chalstrom is protected by qualified immunity. He argues that a reasonable inspector in
Chalstrom’s position would have known that walking around an open lot to inspect the
outside of a house was an unlawful invasion of protected curtilage.
The curtilage of a home receives some Fourth Amendment protection. Curtilage is
the space that surrounds a home and that the home’s residents may reasonably expect to
“be treated as the home itself.” United States v. Dunn, 480 U.S. 294, 300 (1987). It harbors
the “intimate activity associated with the sanctity of a [person’s] home and the privacies
of life.” Oliver v. United States, 466 U.S. 170, 180 (1984) (quoting Boyd v. United States, 116
U.S. 616, 630 (1886)); see Florida v. Jardines, 133 S. Ct. 1409, 1414–15 (2013); California v.
Ciraolo, 476 U.S. 207, 213 (1986). The front porch of a home is part of its residents’
curtilage, see Jardines, 133 S. Ct. at 1415, and the backyard may also be curtilage in certain
circumstances, see Dunn, 480 U.S. at 301. Curtilage is distinct from “open fields”: any
“unoccupied or undeveloped area” that “do[es] not provide the setting for those intimate
activities that the [Fourth] Amendment is intended to shelter from government
interference or surveillance.” See Oliver, 466 U.S. at 179, 180 n.11.
Curtilage and open fields are treated differently. A warrantless search of a home’s
interior conducted from its curtilage, such as a dog-sniff from the front porch, violates
the Fourth Amendment. See Jardines, 133 S. Ct. at 1414–17. But a warrantless entry onto
an unoccupied, accessible open field to conduct an outside search, even in the face of a
“No Trespassing” sign, does not. See Oliver, 466 U.S. at 179-183.
We need not decide whether the areas from which Chalstrom inspected the
house’s exterior were part of its curtilage. Pearson v. Callahan, 555 U.S. 223, 236 (2009). To
defeat qualified immunity, Davis must identify case law from before the time of the

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search that treated the ungated grounds surrounding an unoccupied house as curtilage
that a government inspector could not enter for purposes of visual inspection.
See City and County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (explaining that
government agent “cannot be said to have violated a clearly established right unless the
right’s contours were sufficiently definite that any reasonable official in his shoes would
have understood that he was violating it” (internal quotation marks omitted)); Gustafson
v. Adkins, 803 F.3d 883, 891 (7th Cir. 2015). Davis has not identified a single case (nor can
we) that applies Fourth Amendment protection to the unenclosed areas surrounding an
unoccupied house and prohibits observations of its exterior from those areas. And Davis
submitted no evidence that he resided in the house or used it or its yard for any private
activities. In fact, he admits that he never lived there, and Chalstrom was inspecting the
property precisely because it had been vacant of any residents for more than 30 days.
Under these circumstances, Davis is entitled to qualified immunity.
Davis also raises two procedural arguments, but neither is persuasive. First, he
argues that the district court erred when it considered an affidavit from Chalstrom. The
affidavit states that Chalstrom did not recall seeing the “No Trespassing” sign and that
the attached photos accurately reflected the condition of the house in 2012. Davis argues
that these statements are false. But the statements were based on Chalstrom’s personal
knowledge, see Markel v. Bd. of Regents of the Univ. of Wis. Sys., 276 F.3d 906, 912 (7th Cir.
2002), and are not plainly incredible, see Seshadri v. Kasraian, 130 F.3d 798, 801–02 (7th Cir.
1997). Although Davis asserts that there was a “No Trespassing” sign in the window, the
assertion does not negate Chalstrom’s statement that he did not see it. And Davis’s
statement that Chalstrom’s photographs of the house bore a time stamp from 2013 does
not mean that Chalstrom lied when he said the photographs also accurately depicted the
condition of the house when he first inspected it in 2012. In any case, Chalstrom’s
statements are irrelevant to the qualified-immunity analysis.
Second, Davis argues that the district court erred when it denied his motion to file
a third amended complaint. The amended complaint proposed claims arising from events
that occurred after this suit was filed. We review the district court’s ruling for abuse of
discretion, see Gandhi v. Sitara Capital Mgmt., LLC, 721 F.3d 865, 868 (7th Cir. 2013), and
conclude that it reasonably denied the request. The district court correctly pointed out
that amending the complaint when Davis proposed it—after discovery had closed and
the parties had filed dispositive motions—would prolong this protracted case because
the amendment would require further discovery. See, e.g., Campbell v. Ingersoll Milling
Mach. Co., 893 F.2d 925, 927 (7th Cir. 1990). In any event, Davis’s amendment was futile.
See Foman v. Davis, 371 U.S. 178, 182 (1962); Stayart v. Yahoo! Inc., 623 F.3d 436, 439 (7th
Cir. 2010). The claims he sought to add—malicious-prosecution claims based on a

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municipal proceeding initiated in 2014—are not federal constitutional torts.
See Bontkowski v. Smith, 305 F.3d 757, 760 (7th Cir. 2002); Newsome v. McCabe, 256 F.3d 747,
750-51 (7th Cir. 2001); Strid v. Converse, 331 N.W.2d 350 (Wis. 1983). The district court
properly declined to exercise jurisdiction over Davis’s state-law claims after it dismissed
his federal claims. See Howlett v. Hack, 794 F.3d 721, 728–29 (7th Cir. 2015).
AFFIRMED.

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