Aug. 6, 2015 – Dale Kreil argued that Milwaukee County violated his Fourth Amendment right against unreasonable searches and seizures when a sheriff executed an outdated writ of restitution that allowed deputies to remove Kreil from his residence.
But in Kreil v. County of Milwaukee, No. 14-3388 (July 20, 2015), a three-judge panel for the U.S. Seventh Circuit Court of Appeals ruled that the eviction did not violate the Fourth Amendment, even if the sheriff missed a deadline to complete the eviction.
It all started in 2005. DKCLM Ltd. was renting property from Apollo Properties LLC to sell and service boats in the City of Franklin, a Milwaukee suburb. DKCLM subleased a portion of the property as a residence to Kreil, an officer of DKCLM at the time.
But Kreil defaulted on the rent, and Apollo initiated an eviction action in small claims court. The parties ultimately reached a settlement that allowed Kreil to keep living there, but Apollo could seek a court-ordered “writ of restitution” if Kreil defaulted again.
Under state law, the writ of restitution allows a sheriff, upon delivery from a landlord, to remove the tenant and the tenant’s possessions without notifying the tenant. However, the sheriff must execute the writ of restitution within 10 days of receiving it.
The state court judge ruled that the eviction was not unlawful, noting the eviction had been delayed by the presence of a skunk in Kreil’s residence.
Six years after Kreil was removed from the property and Apollo obtained a judgment for nearly $54,000 in unpaid rent, Kreil commenced an action under 42 U.S.C. section 1983, which allows individuals to seek damages for a violation of constitutional rights.
Kreil argued that the sheriff did not execute the writ within 10 days, and thus the sheriff violated his Fourth Amendment rights by entering the property to evict him after the statutory deadline. The U.S. District Court for the Eastern District of Wisconsin, Judge Rudolph Randa, rejected Kreil’s claims. Recently, the federal appeals court agreed.
“[T]he eviction did not violate the Fourth Amendment even if the sheriff missed the 10-day deadline. And not because of the skunk’s intervention,” wrote Judge Richard Posner for the three-judge panel. “The 10-day deadline is imposed by state law rather than by the Fourth Amendment. The standard governing legality of a search or seizure challenged under the Fourth Amendment is furnished by federal rather than state law.”
Judge Posner noted that searches and seizures must be “reasonable,” and regardless of any 10-day deadline, or skunk delays, “Kreil hasn’t shown that the length of time it took the sheriff to remove all of Kreil’s possessions was unreasonable.”
Due Process
The panel also rejected Kreil’s argument that removing and allegedly destroying his property with an outdated writ deprived him of property without due process, concluding Kreil did not bring forth sufficient evidence to oppose a motion for summary judgment.
However, the panel suggested that if Kreil’s evidence was sufficient, Wisconsin’s $50,000 cap on agency and officer liability may create a viable due process claim.
Under Parratt v. Taylor, 451 U.S. 527 (1981), a due process claim fails if there’s an adequate state remedy for deprivation of property, the panel noted.
“[T]he problem in this case is that the Wisconsin state statute that provides a remedy for such a deprivation caps the liability of state agencies and officers at a measly $50,000 … which if Kreil’s estimate of damages had been correct would be less than a twentieth of his actual damages,” wrote Judge Posner, referring to Wis. Stat. section 893.80(3).
“We are inclined to think, though we need not decide in view of the bar to his due process claim just discussed, that a ceiling so far below a plaintiff’s loss renders the state remedy inadequate.”
