Key Points

  • The Eighth Circuit affirmed dismissal of all Section 1983 claims against the City of Omaha, its housing officials and two housing advocates over the 2018 closure of the Yale Park Apartment Complex.
  • Even without the disputed and allegedly false statements, the inspection warrant application showed probable cause, so the Franks challenge failed.
  • A violation of Nebraska's statute requiring a refused request for consent before an inspection warrant issues does not state a Section 1983 claim.
  • The due process claims failed because the complaint did not identify the protected interests at stake or who violated them and how.
  • No per se taking was pleaded because AB Realty still owns Yale Park, and no regulatory taking was pleaded because AB Realty never argued the Penn Central test.

A federal appeals court on Nov. 6 upheld the dismissal of a civil rights lawsuit brought by the owner of an Omaha apartment complex that the city shut down in 2018 for building-code violations. The court held that the owner had not plausibly alleged that the city's inspection warrant, its closure of the building or its handling of the repairs violated the Constitution.

A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal of every claim against every defendant in the suit by AB Realty LLC, owner of the Yale Park Apartment Complex, and Kay and Janae Anderson. Judge Kobes wrote the opinion for the panel, which also included Chief Judge Colloton and Judge Gruender.

The court held that false statements in an inspector's warrant application did not taint the warrant because the rest of the application still showed probable cause. It also held that a breach of a Nebraska consent statute does not by itself support a federal claim, and that a closure that leaves the owner holding title is not a per se taking.

According to the opinion, housing advocates Hannah Wyble and Lori Vlach began talking with Yale Park tenants about their living conditions in the summer of 2018. They photographed the building, helped tenants fill out complaint forms and sent information to the city, "which began planning Yale Park's closure." Omaha's chief housing inspector, Scott Lane, obtained a warrant to inspect and search the complex, relying mostly on the advocates' information and citing suspected health and safety violations in 84 units.

The application "contained factual errors, including a false statement that Kay denied Lane's request to enter and inspect the building," the court wrote. Nonprofits and local media knew the city planned to close Yale Park, the opinion said, but AB Realty and Kay Anderson did not.

The city executed the warrant on Sept. 20, 2018. Police and housing inspectors searched the property, and tenants were forced to relocate. The city then cited violations including carbon dioxide leaks, non-functioning heat, exposed wiring and moldy circuit breakers, and it ordered that the complex stay closed until the violations were cured.

AB Realty appealed to the Property Management Appeals Board, which handles building code disputes, in January 2019. The city eventually mailed notices of around 2,000 violations and prosecuted Kay Anderson for misdemeanor violations of its property maintenance code. A jury convicted him on a few counts and acquitted him on most, according to the opinion.

After finishing repairs, AB Realty reopened Yale Park in the spring of 2021, and it and the Andersons sued under 42 U.S.C. § 1983. The defendants were the city, Assistant Director of Human Rights Gerald Kuhn, Lane, fellow inspector Kevin Mulcahy, Wyble and Vlach. Two district judges, the late Laurie Smith Camp and Chief Judge Robert F. Rossiter Jr., dismissed the case in stages.

On appeal, AB Realty argued that Lane lied about asking permission to enter and falsely claimed, among other things, that Kay Anderson used "threat tactics" against tenants and that a gas leak caused an explosion. Those statements, it said, voided the warrant under Franks v. Delaware, a 1978 Supreme Court decision. To win, the court wrote, a challenger must also show that "the affidavit's remaining content is insufficient to provide probable cause."

AB Realty could not make that showing, the panel held. "Even excluding the information disputed by AB Realty, the warrant application established probable cause for the inspection warrant," Kobes wrote. He pointed to complaints covering 84 of the building's 100 units, holes in the roof, untreated natural gas leaks and Kay Anderson's admission that he had been "lackadaisical" in completing maintenance requests. The court noted that the Nebraska Supreme Court had reached the same conclusion about the revised warrant in Anderson's criminal case.

AB Realty also argued that the warrant was deficient because Nebraska law allows inspection warrants "only upon showing that consent to entry for inspection purposes has been refused," and Lane never asked for consent. "The Nebraska statute is beside the point; a violation of state law alone does not state a § 1983 claim," the court held.

The due process claims failed for want of specifics. AB Realty contended that "[t]he Defendants effectively deprived the Plaintiffs of virtually all significant due process." Kobes wrote: "Reading AB Realty's second amended complaint, we cannot decipher who is allegedly responsible for what due process violation."

The complaint alleged, among other things, that the city closed the whole building rather than individual units, that "Danger Closed" signs were wrongly posted and that repairs were "delayed or impeded." The panel said those "scattershot allegations involve different defendants and distinct interests, which change depending on which plaintiff is asserting them." Because AB Realty never identified the protected interests at stake, or who violated them and how, the court said it could not assess what process was due.

The takings claim drew similar treatment. The complaint alleged that the city's actions "constitute an effective and inverse taking." "It is not clear what that means," Kobes wrote. The Fifth Amendment recognizes per se takings, such as a physical appropriation, and regulatory takings, and the court said AB Realty had properly pleaded neither.

On the per se theory, the court cited the Supreme Court's 2021 decision in Cedar Point Nursery v. Hassid, which framed the "essential question" as "whether the government has physically taken property for itself or someone else." The panel wrote: "AB Realty was and is the owner of Yale Park; there is no allegation that could support a finding that the City took AB Realty's asserted 'real property rights.'"

As for a regulatory taking, the panel quoted its 2025 decision in reVamped LLC v. City of Pipestone: "A lawful exercise of a state's police power to regulate in the interest of public health and safety is generally not a [regulatory] taking." AB Realty also never argued that the closure was a taking under Penn Central's balancing test, the court said.

"Because AB Realty failed to plead a constitutional violation, we affirm the dismissal of all claims against all defendants," the court concluded. The opinion orders no remand, leaving the dismissal in place. The plaintiffs may seek further review.