Background
The City of Omaha closed the Yale Park Apartment Complex for building-code violations. Owner AB Realty, LLC and Kay and Janae Anderson sued the City, Assistant Director of Human Rights Gerald Kuhn, housing inspectors Scott Lane and Kevin Mulcahy, and private citizens Hannah Wyble and Lori Vlach under 42 U.S.C. § 1983. They appealed dismissal of their Fourth, Fifth, and Fourteenth Amendment claims. The Eighth Circuit reviewed de novo and considered the allegations and exhibits attached to or referenced in the complaint.
During summer 2018, housing advocates Wyble and Vlach spoke with tenants, photographed the building, helped complete complaint forms, and sent violation information to the City. Chief Housing Inspector Lane obtained an inspection and search warrant based mostly on that information. His application cited suspected health and safety violations in 84 units but contained factual errors, including a false statement that Kay had denied a request to enter and inspect. Nonprofits and local media knew of the planned closure, but AB Realty and Kay did not.
The City executed the warrant on September 20, 2018. Police and inspectors searched the property, and tenants were forced to relocate. The City later reported violations including carbon dioxide leaks, roof holes, nonfunctioning heat, exposed wiring, broken windows, faulty plumbing, and moldy circuit breakers, and barred reopening until they were cured. AB Realty began repairs and appealed to the Property Management Appeals Board in January 2019. The City eventually issued notices of approximately 2,000 violations and prosecuted Kay for misdemeanor property-maintenance offenses. A jury convicted him on a few counts and acquitted him of most. AB Realty reopened Yale Park in spring 2021 and filed suit. The district court dismissed some claims, stayed the case during Kay’s criminal proceedings, and later dismissed the remaining claims.
The Court’s Holding
The court affirmed dismissal of all claims against all defendants because AB Realty failed to plead a constitutional violation. On the Fourth Amendment claim, AB Realty invoked Franks v. Delaware, alleging that Lane lied about requesting entry and falsely stated that police had been called, inspections had occurred, Kay used “threat tactics,” and a gas leak caused an explosion. The court explained that a Franks claimant must show deliberate, knowing, or reckless falsity and that the affidavit’s remaining content lacks probable cause. Even excluding the disputed information, the application described complaints concerning 84 of 100 units, roof holes, untreated natural-gas leaks, and Kay’s admission that he had been “lackadaisical” about maintenance. That independently established probable cause for the administrative inspection warrant.
The court also rejected the argument that the warrant was deficient because Lane never sought consent, as allegedly required by Neb. Rev. Stat. § 29-832. A state-law violation alone does not support § 1983 liability, and state law does not alter the Fourth Amendment’s content. This rationale concerned the asserted federal constitutional violation, not whether the Nebraska statute had been followed.
The Fourteenth Amendment procedural-due-process claim failed at the first inquiry: identifying a constitutionally protected life, liberty, or property interest. The second amended complaint’s “scattershot allegations” included collection of invalid complaints, closure of the entire building, tenant evictions, “Danger Closed” signs, reopening restrictions, impeded repairs, and denigration to contractors. But the court could not determine which defendant allegedly violated which plaintiff’s rights, or how, particularly because landlord, tenant, individual, and entity interests differed. It therefore could not assess what process was due and did not reach the additional arguments concerning citation procedures or municipal liability for the private citizens’ conduct.
On the Fifth Amendment claim, the court found neither a per se nor regulatory taking adequately pleaded. AB Realty remained Yale Park’s owner, and no allegation supported a physical appropriation by the government for itself or another. Although the complaint alleged loss of the property’s highest and best use and no condemnation proceedings, that did not establish a per se taking. AB Realty also did not argue that the closure constituted a regulatory taking under Penn Central’s balancing test. The court noted that lawful public-health and safety regulation generally is not a regulatory taking and that inverse condemnation is a state-law remedy, not a type of taking.
Key Takeaways
- Even assuming the disputed warrant statements were removed, complaints about 84 of 100 units and specific safety defects supplied probable cause.
- An alleged violation of Nebraska’s consent prerequisite for an inspection warrant did not itself establish a federal § 1983 claim.
- The due-process dismissal rested on failure to identify the protected interests and responsible defendants; the court did not decide the remaining procedural or private-citizen liability arguments.
- Continued ownership defeated the pleaded per se taking theory, while the absence of a Penn Central argument left no adequately stated regulatory taking.
Why It Matters
The decision illustrates the separate pleading burdens facing § 1983 plaintiffs challenging an administrative closure. Alleged falsities in a warrant application do not establish a Franks violation unless the corrected affidavit lacks probable cause, and state procedural requirements cannot simply be substituted for federal constitutional limits.
It also underscores the need to separate owner, tenant, individual, and corporate interests and to attribute conduct to particular defendants. For takings claims, allegations of closure and lost use must be connected to a recognized theory, including a developed Penn Central analysis for regulatory takings.