SOUTH DAKOTA - FIREFIGHTERS AND POLICE HAD AUTHORITY TO ENTER OPEN FIELDS OF A FARM WHEN THEY OBSERVE OPEN BURN - LAWSUIT AGAINST THEM BY LANDOWNER DISMISSED SINCE THEY ENJOY "QUALIFIED IMMUNITY."
published: December 2006

On November 28, 2006, a federal judge ordered the lawsuit dismissed in George W. Ferebee v. Jerome Smith, et al., U.S. District Court for District of South Dakota, Western Division, CIV. 04-5123, 2006 U.S. Dist. LEXIS 86404.   The federal district judge dismissed the lawsuit, holding that the doctrine of qualified immunity shields government officials from such lawsuits, citing the U.S. Supreme Court, so long "as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would know."  Harlow v. Fitzgerald,  457 U.S. 800, 818 (1982).

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The case arose on Dec. 30, 2002, when a Pennington County deputy sheriff, Jerome Smith, while on the way to a 9-1-1 call, observed a lot of smoke coming from both a burn barrel and from other places on the property of George Ferebee.   Deputy Smith called dispatch, and was informed that Ferebee had a permit to burn in the barrel only.   After the 9-1-1 call, the deputy sheriff arranged for two firefighters from Hill City Fire Department, along with two fire management officers with the South Dakota Department of Agriculture, to meet him at the property. 

 

The five officials saw smoke still rising from the property, so they entered the property.  The observed Mr. Ferebee burning pine needles and other debris in a draw well away from the residence, both in a burn barrel and also in piles on the forest floor around the barrel.  At least 50 square feet of the forest floor had been burned.  The two fire management officers told the property owner he was burning in violation of his permit, and they asked the deputy sheriff to issue a citation to the farmer.

 

Deputy Sheriff Smith asked Ferebee for some information for the citation.  Ferebee refused to provide this information, and refused to accept the citation.  The deputy sheriff then placed him under arrest, took him to jail and advised him that his wife could post a $300 bond to get him out.   At the jail, Ferebee also refused to complete the booking information.  When his wife came to jail and posted the $300 bond, Ferebee continued to refuse to provide the information, so he remained in jail for another three hours until he decided to cooperate.

 

Deputy Sheriff Smith had a subsequent opportunity to arrest Ferebee. In 1999, three neighbors got a protective order against Ferebee for "stalking."  The protective order was still in effect in March, 2003, when one of Ferebee's neighbors videotaped Ferebee walking on the neighbor's driveway.  Deputy Smith tried to arrange to talk to Ferebee, but he would not return Smith's calls.  Smith therefore obtained an arrest warrant, and arrested him on March 15, 2003.  He was held in jail without bond over the weekend.  

 

This federal lawsuit was filed by Ferebee pro se (did not have an attorney).  He also named as defendants his three neighbors who had obtained the 1999 protective order, and also against the local judge who had issued the protective order.   

 

Attorneys for the firefighters and for the deputy took plaintiff's deposition, and then filed a motion for summary judgment. Fortunately, all defendants were dismissed by federal district senior judge Andrew W. Bogue. Regarding the firefighters and Deputy Smith, Judge Bogue wrote:

 

"The Plaintiff's Complaint contains numerous allegations against Smith. First, the Plaintiff alleges Smith and the firefighters trespassed onto the Plaintiff's private property, in violation of the Plaintiff's constitutional rights. Liberal construction of the this claim indicates the Plaintiff's section 1983 claim  [42 U.S.C. Sec. 1983] would have to be premised on a violation of his Fourth Amendment rights against unreasonable searches. Also, during his deposition, the Plaintiff claimed Smith violated his constitutional rights by removing a pocket: knife from the Plaintiff's pocket when they arrived at the Jail."

 

The court wrote that there was no illegal search of the residence or its cartilage (immediate surrounding area). "In this case, the evidence shows the area where Smith and the firefighters entered was an open field. The Plaintiff was burning pine needles "in a draw well away from" the residence, showing the burning area was not in close proximity to the home. No evidence is presented to show the area was in an enclosure surrounding the home. The Plaintiff testified in his deposition that he was raking and burning pine needles in an effort to keep the pine needles out of the hay he fed his cattle, see Ferebee Dep.  (doc. # 127-2) at 13:14-15:9, indicating the "nature of the use" was for grazing, or for harvesting or storing hay. The Plaintiff also admitted he was burning pine needles out in the open. See id. at 20:9-11. This use indicates the area is more akin to an open field than it is to the curtilage of the home. Also, the Plaintiff has not presented evidence that he had taken steps to protect the area from observation by passers by. In sum, this area was not "so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." Dunn, 480 U.S. at 301. Because the Plaintiff cannot show Smith violated the Fourth Amendment by entering onto the property, Smith entitled to qualified immunity, and is granted summary judgment on the Plaintiff's claim against him based on an unreasonable search."

 

The court also cited the "qualified immunity" doctrine. Even assuming that the Plaintiff could show the Defendants violated his constitutional right to be free from unreasonable searches, the second inquiry under the qualified immunity analysis requires the Plaintiff show the right was clearly established, or "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 201-02. This objective element 'requires the court to look beyond the generalized constitutional protection, such as the right to be free of unreasonable searches and seizures, and to determine whether the law is clearly established in a more particularized sense.' Kerman v. City of New York, 261 F.3d 229, 236 (2d Cir. 2001)(citing Anderson v. Creighton, 483 U.S. 635, 640 (1986)). 'The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.' Id. at 236-37 (quoting Anderson, 483 U.S. at 640). The particular right the Plaintiff asserts, the right to be free from a warrantless entry into an open field by a deputy to investigate an open fire, is not clearly established. Thus, qualified immunity applies to shield Smith from this lawsuit."

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