Jennifer Petkus v. Richland County, Wisconsin , 767 F.3d 647 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13-3603, 13-3700
JENNIFER PETKUS,
Plaintiff-Appellee, Cross-Appellant,
v.
RICHLAND COUNTY, WISCONSIN, et al.,
Defendants-Appellants, Cross-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 12-C-104 — William M. Conley, Chief Judge.
____________________
ARGUED MAY 27, 2014 — DECIDED AUGUST 19, 2014
____________________
Before POSNER, EASTERBROOK, and HAMILTON, Circuit
Judges.
POSNER, Circuit Judge. Richland County is a rural county
in southwestern Wisconsin. Jennifer Petkus, the plaintiff,
owns a property in the county that she calls the Thyme &
Sage Ranch and that, as Richland County’s official dogcatch-
er, she operated as an animal sanctuary until 2009, when she
was arrested after an investigation by an animal- cruelty in-
vestigator for the ASPCA. The investigation resulted in a
2 Nos. 13-3603, 13-3700
search of her property, the termination of her employment
as county dogcatcher, and her arrest, followed by prosecu-
tion for animal neglect, conviction, and a sentence to three
years of probation. State v. Petkus, No. 2009-CM-82 (Circuit
Court of Richland County, April 28, 2011). The search is the
focus of the present litigation, a civil suit by Petkus against
the County and several of its deputy sheriffs.
As authorized by Wis. Stat. § 173.10, the ASPCA investi-
gator procured a warrant to search Petkus’s property. The
warrant directed law enforcement officers to enlist in the
search veterinarians or any “other persons or agencies au-
thorized by the Richland County District Attorney.” The Su-
preme Court had held in Wilson v. Layne, 526 U.S. 603, 611
(1999), that “police actions in execution of a warrant [must]
be related to the objectives of the authorized intrusion” and
therefore that the police in that case should not have brought
reporters into the house they were searching because their
“presence … in the home was not in aid of the execution of
the warrant.” Id. at 614. In contrast, the veterinary and ani-
mal-rights people who accompanied the two or three deputy
sheriffs assigned to the search of Petkus’s property were
more than merely helpful in executing the warrant—they
were its executors; they conducted the search. They were
some 40 to 50 volunteers from animal-rights organizations
such as the ASPCA. They had not been deputized.
Richland County’s brief states that the deputy sheriffs’
role was not to participate in the search but simply to “keep
the peace.”
Almost all the animals found on the property—mainly
dogs (more than 300) but also a few rabbits, horses, two lla-
mas, a burro, a ram, and even chinchillas and cockatiels (the
Nos. 13-3603, 13-3700 3
last two were pets of Petkus and apparently in good
health)—were removed by the search party.
This was not the first time that animals had been found
in poor health on Petkus’s property; in March 2009, tragical-
ly, six of ten cats who had been removed from the property
on the advice of a veterinarian were found to be so far gone
that they had to be euthanized.
Her suit is based on both Wisconsin and federal law. The
Wisconsin claim is a common law negligence claim; the fed-
eral claim is based on 42 U.S.C. § 1983. The County’s liability
insurer was named as an additional defendant, along with
other insurers, but as no relief is sought against any of the
insurers we’ll ignore them.
The asserted basis of the County’s liability, as distinct
from the liability of the deputy sheriffs, is the doctrine of re-
spondeat superior. See Lewis v. Physicians Ins. Co. of Wiscon-
sin, 627 N.W.2d 484, 488 (Wis. 2001); Pamperin v. Trinity Me-
morial Hospital, 423 N.W.2d 848, 852 (Wis. 1988); Scottsdale
Ins. Co. v. Subscription Plus, Inc., 299 F.3d 618, 621–22 (7th Cir.
2002). The animal-rights activists who conducted the search
of Petkus’s property were ad hoc employees of the County;
the deputy sheriffs were conventional employees. It’s true
that a municipality can’t be held liable for violations of the
Fourth Amendment on the basis of the doctrine of re-
spondeat superior, Monell v. Department of Social Services, 436
U.S. 658, 690–91 (1978), but the County has not challenged
the applicability of the doctrine to it.
Petkus alleges that the searchers negligently caused ex-
tensive physical damage to her house, barn, fencing, gates,
and other property, and emotional distress to herself, and
4 Nos. 13-3603, 13-3700
that the sheriff’s deputies were negligent in failing to train or
supervise the amateur searchers. She further alleges that by
reason of this negligence and the resulting damage, the
search, undertaken as it was by order of County officers act-
ing within the scope of their employment, was unreasonable
within the meaning of the Fourth Amendment, which has
been held to have been made applicable to state and local
government by the due process clause of the Fourteenth
Amendment.
The County removed the case to federal district court,
where it was tried to a jury, which found in favor of Petkus,
though the judge reduced the damages awarded to her. Both
sides have appealed.
What made the search unreasonable, as the jury was em-
inently entitled to find that it had been, was not absence of
probable cause or some other defect in the warrant. It was
how the search pursuant to the warrant was conducted—
namely, incompetently. This was the result of the County’s
failure to train the Good Samaritan animal-rights people
who conducted the search—inflicting in the course of doing
so needless damage on Petkus’s property—as temporary
County agents. The County does not argue that the plight of
the animals on the property was so desperate that there was
no time to provide even minimal instruction to the volunteer
searchers, or to assign additional deputy sheriffs, perhaps
borrowed from neighboring counties, to conduct the search
themselves, though they probably would have needed the
assistance of veterinarians.
The incompetence of the amateur searchers is apparent
from the reports of the deputy sheriffs who accompanied
Nos. 13-3603, 13-3700 5
them in order to “keep the peace.” Here is an excerpt from a
report about events on the first day of the two-day search:
I did question the white burro being seized. I was not
able to see any type of injuries on that animal and I asked
the veterinarian why she was seizing that and she indicat-
ed that he was weaving and I guess I didn’t understand
that so I asked what the weaving meant. … [S]he [the vet-
erinarian] believed he [the burro] was having some type of
a psychological dilemma and needed to be evaluated and
that was why she was taking the white burro. I guess I re-
ally didn’t understand that I had not seen any actions on
his [the burro’s] behalf of that nature, but she is the trained
medical veterinarian and I’m not.
… In this pasture were sheep, lamas [sic], mini ponies,
and one Holstein steer. They did finally get a group of the
mini ponies cornered in one corner of the pasture and they
[the veterinarian and animal rights volunteers] had a piece
of orange plastic fencing stretched out trying to keep them
confined in that one area. … Jeffrey who is the lama [sic]
had walked up behind the people that were holding the
orange fencing and one of the gentleman [sic] reached out
and just took his hand and kind of shoved Jeffrey away
and Jeffrey became somewhat upset and knocked the or-
ange fencing down. The mini ponies stampeded running
out over the fencing and they knocked the Dane County
Vet Tech down and she fell into another female working
from the Humane Society of the United States who fell
down and from all appearances it looked like she had bro-
ken her wrist. [She had.]
As a second report indicates, the searchers left the
property in shambles:
When we [Petkus and the deputy sheriff] went back in-
to the residence [of Petkus] on the 21st [the day after the
6 Nos. 13-3603, 13-3700
two-day search ended] things were not in the same condi-
tion. I did take several pictures of the residence on the sec-
ond day that I was there. There was dog feces on the floor,
things had been opened and there was trash thrown into
the day beds where the puppies were. … There were
scratches on a bistro type table top that were not there the
day before when we were there. There was spilled dog
food in the kitchen sink, there were marks and scratches
on the doors and walls that looked like somebody had
tried to carry something through and marred the doors.
There was just garbage all over the place. … In the barn I
did notice that there were pop cans thrown on the ground.
… [I]t just generally looked like the garbage was dumped
anywhere and everywhere. Things were in disarray, some
things were damaged. There was a cage that had housed I
believe it was gerbils and the glass or plexi glass front of
that had been broken apart and I guess instead of opening
the doors they just broke the plastic to get them out. There
was dog food spilled on the floors, dog feces that was just
ground into the floor. It was just generally quite a mess
compared to what it had been two days prior to that when
I was at the residence.
The jury awarded Petkus damages of $193,480, of which
$133,480 was for the negligent conduct of the search and the
other $60,000 for the violation of the Fourth Amendment.
The district judge entered judgment for only $133,480
($193,480 – $60,000), however, explaining that although there
had been two violations there had been only one injury and
the higher of the jury’s two valuations of the injury was
$133,480. The County’s appeal seeks annulment or reduction
of the entire judgment, Petkus’s appeal restoration of the
damages that the judge disallowed.
Nos. 13-3603, 13-3700 7
The evidence that the property damage inflicted by the
search was a result of negligence by the searchers, and by
the sheriff’s deputies who launched them on the search, was
sufficient to justify the verdict on that count of the com-
plaint. Although $133,480 seems an excessive estimate of the
damages, there was enough evidence supporting it to pre-
clude a reduction by the district judge or by us.
The County argues that the damage to property was no
more than $40,000, so that the rest of the jury’s award must
have been for emotional distress—and under Wisconsin law
emotional distress resulting from negligent destruction of
property (even if the property is a beloved pet animal) is not
compensable. E.g., Rabideau v. City of Racine, 627 N.W.2d 795,
802 (Wis. 2001). But the County forfeited the point by failing
to raise it at the trial.
The judge was right to disallow the $60,000 component of
the verdict. Petkus had established two separate violations,
but the damage caused by the searchers’ negligence was the
same damage caused by the search’s having violated the
Fourth Amendment. The searchers may have inflicted some
damage through carelessness and other damage deliberate-
ly, but there is no basis in the evidence for distinguishing be-
tween the two types of behavior. We mustn’t forget that the
suit is against the County and its officers rather than against
the amateur searchers. The relevant negligence is that of the
officers and it’s irrelevant whether it consisted of failing to
prevent deliberate or merely careless searching by the un-
trained, unsupervised animal-rights activists who conducted
the search. Turning them loose on Petkus’s property violated
her Fourth Amendment rights by initiating an unreasonable
search.
8 Nos. 13-3603, 13-3700
Not that the jury instructions were clear in distinguishing
between the common law tort claim and the Fourth
Amendment claim. The judge instructed the jury that “if a
certain type of award applies to both claims [negligence and
Fourth Amendment], include the amount in the space pro-
vided for each claim. The court and parties will take care of
any overlap awarded.” How they would “take care” of the
“overlap” was never discussed—but neither was it objected
to. What the judge did of course was simply lop off the por-
tion of the damages award that the jury had allocated to the
Fourth Amendment violation.
So Petkus’s appeal fails. But what of the County’s ap-
peal?
We have no basis for disturbing either the jury’s finding
of negligence or its finding that the search was unreasonable.
The search warrant was valid, but the conduct of the search
unreasonable, making the search unreasonable within the
meaning of the Fourth Amendment. See United States v.
Ramirez, 523 U.S. 65, 71 (1998); Tarpley v. Greene, 684 F.2d 1,
8–9 (D.C. Cir. 1982). Police can’t be permitted, merely by vir-
tue of having obtained a search warrant, to allow an un-
trained, unsupervised mob (however well-intentioned, as we
may assume the animal-rights activists who conducted the
search to have been) to conduct a search likely to result in
gratuitous destruction of private property because of the
mob’s lack of training and supervision. What the police
could not have done lawfully had they conducted the search
themselves they could not authorize private persons to do in
their stead. Blum v. Yaretsky, 457 U.S. 991, 1003–05 (1982);
United States v. Shahid, 117 F.3d 322, 325, 327–28 (7th Cir.
1997); United States v. Feffer, 831 F.2d 734, 737 (7th Cir. 1987);
Nos. 13-3603, 13-3700 9
United States v. Momoh, 427 F.3d 137, 140–41 (1st Cir. 2005);
United States v. Parker, 32 F.3d 395, 398–99 (8th Cir. 1994). Po-
lice cannot hire the Hell’s Angels to conduct highway patrol
and, though failing to train or supervise them, shuck off re-
sponsibility when one of the Angels beats a speeder into a
bloody pulp with a tire iron.
The County argues that it can’t be responsible for the
damage to Petkus’s property because the sheriff’s deputies
did not supervise the animal-rights activists who conducted
the search and who therefore inflicted the damage. The ar-
gument—which amounts to saying the greater the County’s
negligence the less its culpability—is frivolous. If accepted, it
would shred respondeat superior, the applicability of which
in this case the County has failed to challenge. Employers
would be off the hook just by letting their employees run
wild.
The County also argues that even if it violated federal
and state law, it is absolutely immune from liability by vir-
tue of Wis. Stat. § 893.80(4). That statute provides that “no
suit may be brought against any … governmental subdivi-
sion or any agency thereof for the intentional torts of its of-
ficers, officials, agents or employees … for acts done in the
exercise of legislative, quasi-legislative, judicial or quasi-
judicial functions.” As the Supreme Court held in Felder v.
Casey, 487 U.S. 131, 138 (1988), the statute can’t immunize
the County from liability for violating federal law. But nei-
ther can it immunize the County against Petkus’s state-law
claims. For although the County invoked the statute in its
answer to the complaint, that was the last mention of it, so
the defense has been forfeited. The County argues that the
immunity can’t be forfeited; Wisconsin’s supreme court has
10 Nos. 13-3603, 13-3700
held that it can be. Anderson v. City of Milwaukee, 559 N.W.2d
563, 570 (Wis. 1997).
Wisconsin does, however, cap damages for unlawful
acts, other than intentional torts, committed by government
agencies or their employees. Wis. Stat. § 893.80(3). The cap
($50,000) is applicable to Petkus’s negligence claim, which is
based on state law; and although the County failed to men-
tion it at trial or ask that it be included in the instructions to
the jury, the cap cannot be waived by omission to plead it—
even after judgment. Anderson v. City of Milwaukee, supra, 559
N.W.2d at 569. It’s an open question whether the defendants
could be deemed to have waived a state law damages cap by
failing to assert it properly in federal court, but it is a moot
question in this case, as we’re about to see.
The jury determined that the damages caused by the
County’s negligence was $133,840; the implication may seem
to be that the judge should have cut the award to $50,000.
But that is not correct. The $133,840 worth of damage was
the indivisible consequence of the violation of the Fourth
Amendment and the violation of state law. Had there been
no violation of state law but only of the Fourth Amendment,
the damage to Petkus would have been the same, and like-
wise had there been a violation only of state law.
The County makes some other arguments, only one of
which we need mention: its objection to the jury instructions.
Although it submitted its own instructions, which the judge
declined to give, it failed to object to the instructions that the
judge did give. That was another forfeiture. Fed. R. Civ. P.
51(c)(2); Chestnut v. Hall, 284 F.3d 816, 819–20 (7th Cir. 2002);
Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020, 1037 (9th
Nos. 13-3603, 13-3700 11
Cir. 2003); Jarvis v. Ford Motor Co., 283 F.3d 33, 56–57 (2d Cir.
2002).
The judgment is
AFFIRMED.