Administrative Searches and the 4th Amendment

jocal505

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Your thrashing around is confusing. I'm not sure what cen$or$hip of political $peech has to do with homeless people and the fact that you need a home to have second amendment rights in the TeamD/grabby view.

I already admitted in this thread that I'm a slumlord figure. To make it worse, as mentioned, one of my victims is a lawyer who works for the county. Poor helpless guy, totally at my mercy.
Hello, Pooplius.  I won't do work for slumlord figures. They are a certain elk, they have no budget for the work their buildings need. They are just workin' it in the USA.

 

Pertinacious Tom

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Shootist Jeff said:
Hello, Pooplius.  I won't do work for slumlord figures. They are a certain elk, they have no budget for the work their buildings need. They are just workin' it in the USA.
Damn, my jocal to english translator is broken again.  Can anyone help me out here?
He's actually right about this. Though they don't typically have lawyers as tenants, there are definitely people with no budget for maintenance, or at least no inclination to spend said budget.

I mentioned one above.

On the other end of the spectrum, I went to look at a house in 2017 and was pretty appalled. It was summer, so storms every afternoon. And every afternoon, the rain came through the leaky roof. There's a lot of this. Landlords who just won't fix anything. The tenants seemed like nice people, doing their best to move and empty buckets in their house. I thought taking their money should be some kind of crime. And it's that kind of thinking that leads to laws like the one in Seattle.

I didn't buy the house.
My rough guess was that the house in question needed $30-50k in repairs, all because the landlord didn't replace a $5k roof. I just looked it up and someone did buy it for about $40k less than the asking price. I think they paid too much because I would have made the idiot landlord compensate me for the price of the needed work plus the PITA factor and lost rent while the work was done.

 

Pertinacious Tom

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Hesperia Sued Again
 

The Department of Justice (DOJ) is suing the California city of Hesperia and the San Bernardino Sheriff's Department over a local rental ordinance, passed in 2016, that the DOJ says amounted to illegal racial discrimination.

The Hesperia law required landlords to register their rental properties with the city, submit the names of all adult tenant applicants to the sheriff's department for criminal background checks, and to include in their leases "crime free" addendums that mandate tenants be evicted for engaging in any criminal activity on or near their property, or in the case of drug crimes, anywhere at all.

In addition, the city's ordinance required every rental property to undergo an annual police inspection.

The DOJ is arguing that this heavy-handed ordinance was all an effort to keep black and Hispanic renters from moving to Hesperia in violation of the Fair Housing Act.
An "annual police inspection" is another "administrative search" and the fourth amendment problem should be obvious.

This isn't the first legal problem for this rule.
 

In 2016, HUD opened an administrative investigation into Hesperia's rental ordinance. That same year, a nonprofit housing provider and the American Civil Liberties Union sued the city over its law.

In response to that lawsuit, the city in 2017 begrudgingly amended its rental regulations to make tenant screenings and evictions for criminal activity voluntary.
I'm happy as usual to see ACLU Inc exercising its corporate first amendment rights in this time-honored way.
 

Tenant advocates often argue for anti-discrimination laws on the grounds that some private landlords, left to their own devices, will refuse to rent to people because of their race.

Provided all the allegations in the DOJ lawsuit are true, the Hesperia law is an example of the opposite phenomena: city officials decided that landlords were not discriminating enough on racial grounds, and passed a law to make them do more of it.
My view as a landlord is that if others turn down good tenants for stupid reasons, that leaves more good tenants for those like me who will not.

Apparently, an unacceptably large percentage of Hesperia landlords felt the same way, prompting the city action.

 
G

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The Department of Justice (DOJ) is suing the California city of Hesperia and the San Bernardino Sheriff's Department over a local rental ordinance, passed in 2016, that the DOJ says amounted to illegal racial discrimination.

The Hesperia law required landlords to register their rental properties with the city, submit the names of all adult tenant applicants to the sheriff's department for criminal background checks, and to include in their leases "crime free" addendums that mandate tenants be evicted for engaging in any criminal activity on or near their property, or in the case of drug crimes, anywhere at all.

In addition, the city's ordinance required every rental property to undergo an annual police inspection.

The DOJ is arguing that this heavy-handed ordinance was all an effort to keep black and Hispanic renters from moving to Hesperia in violation of the Fair Housing Act.
An "annual police inspection" is another "administrative search" and the fourth amendment problem should be obvious.
So, I'm curious....  if they had left out the annual police searches and left the other aspects in place, would you be ok with that?

 

Pertinacious Tom

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So, I'm curious....  if they had left out the annual police searches and left the other aspects in place, would you be ok with that?
No. I see no reason to submit applicants' info to a sheriff for a criminal background check. I already get those through a private service. Also, I'm of the opinion that most drug "crimes" should not be crimes at all. As for things that I agree are crimes, I'm not so sure that they should require lease termination if committed "near" the property.

 
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MR.CLEAN

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So, I'm curious....  if they had left out the annual police searches and left the other aspects in place, would you be ok with that?
I'm also curious on what legal basis a background check could be required of a tenant by a city unless they claim the tenant needs to apply for some kind of license to live there.   Sounds like multiple constitutional issues.

 

Pertinacious Tom

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I'm also curious on what legal basis a background check could be required of a tenant by a city unless they claim the tenant needs to apply for some kind of license to live there.   Sounds like multiple constitutional issues.
It's actually a little worse than you describe.

As mentioned above, they want to BG check applicants, not just tenants. I typically have two or more qualified applicants to whom I'd like to rent before accepting one, and there are some unqualified applicants in the mix. So for each party to whom I rent, the sheriff would be looking into that party and some others who are not even going to be my tenants.

So they're definitely looking to give out permission, if not a license, to rent in the city. The DOJ says the Hesperia govt was doing this because too many landlords were willing to rent to black and hispanic (or is that LatinX now?) people.

 
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I'm also curious on what legal basis a background check could be required of a tenant by a city unless they claim the tenant needs to apply for some kind of license to live there.   Sounds like multiple constitutional issues.
So are you saying a background check for something that doesn't require a license is bad?  

 

Pertinacious Tom

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Nutjob libertarians continue to assault the American way of life
 

This morning, the Commonwealth Court of Pennsylvania issued an opinion vacating and remanding a lower court’s ruling in favor of Pottstown in a lawsuit challenging the borough’s rental inspection ordinance. This law allows the borough to enter residents’ homes without cause and without the residents’ consent. The Court also reversed the trial court’s orders denying discovery to the Pottstown residents who challenged the law. This makes sure that as the lawsuit now proceeds on remand, the residents will have a full record of how these inspections are actually conducted—and what inspectors actually do once they are inside peoples’ homes.

The Court also rejected the borough’s argument that, in order for the tenants to challenge the law, residents would have to first submit to the borough’s invasive rental inspections. After Pottstown tenants Dottie and Omar Rivera and their longtime landlord, Steve Camburn, refused to allow inspectors inside their home, Pottstown obtained administrative warrants to search inside—but with no suspicion that anything was wrong. The Borough also attempted to search the non-rental family home of Pottstown residents Thomas, Kathleen, and Rosemarie O’Connor without their consent and with no search warrant whatsoever. These brave citizens sued Pottstown with the help of the nutjobs at Institute for Justice (IJ).
Much like corporations, tenants are sort of people too and might just have fourth amendment rights...

 

Pertinacious Tom

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More on the Pottstown searches
 

...

Fighting coerced, cause-less inspection of rental units isn't new for the Institute for Justice. It challenged Yuma, Arizona over a similar law in 2002, and forced the city to make search warrants conditional on probable cause. The group is currently fighting similar inspections in Zion, Illinois, and Seattle, Washington, as well.

"Seattle's law is being challenged as more and more cities adopt similar, proactive programs to help improve rental inspections," Curbed reported of the challenge to that city's cause-less searches. "Detroit and Syracuse, New York, have recently passed similar ordinances."

So have other local governments.

"If there is one thing every American understands, it's that government officials don't have the right to enter our homes unless they have a warrant or there's a true emergency," ACLU of Virginia Executive Director Claire Guthrie Gastañaga objected after Hampton, Virginia, adopted a similar rental inspection requirement in 2013. The ACLU earlier threatened legal action against Virginia officials in Chesterfield County, deterring them from adopting similar inspections.

Most of these rental inspection laws couch their rationales in public health language. They're full of concern about code compliance and maintaining safe and hygienic conditions for tenants. Sure, tenants could take concerns up with their own landlords, or file complaints on their own initiative, but much of the push behind rental inspections drips with contempt for the agency of mere renters.

"By relieving tenants of the burden of having to force reticent landlords to make needed repairs, systematic inspections can help ensure that a locality's rental housing stock is maintained and that residents live in healthy conditions," ChangeLab Solutions, a public health nonprofit, claims in A Guide to Proactive Rental Inspection Programs published in 2014.

"Often, the most vulnerable tenants don't complain," the report continues. "Some tenants are unaware that they have a right to safe and habitable housing. They may not know about existing tenant protections or code enforcement programs. Or they may have language barriers or disabilities that make it difficult to navigate the code enforcement system. Many tenants may be afraid to complain about their housing for fear of increased rent or landlord retaliation (such as eviction). Residents may be undocumented or have limited income that hampers their ability to move."

The ChangeLab Solutions report notes that some tenants may have privacy concerns and wish to deny entry to inspectors. It recommends administrative inspection warrants as a means of breaching such barriers.

As befits laws that were born in contempt for those who sign leases instead of deeds, penalties for noncompliance are often levied on landlords, leaving them to find a way to coerce resistant tenants into admitting inspectors, or else join those tenants in fighting intrusive officials.
It's nice that ACLU Inc can effect political change by merely threatening to exercise its corporate first amendment right to expre$$ itself by suing.

 

Pertinacious Tom

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NYPD's No Fault Eviction Program Ends
 

On Monday, October 5, 2020, Judge Andrew L. Carter, Jr. of the U.S. District Court for the Southern District of New York approved a settlement order providing systemic relief to thousands of New Yorkers whom the city had targeted for no-fault evictions in years past. For decades, the city used its no-fault eviction program to coerce residents and businesses to enter into settlements waiving their constitutional rights. Under this week’s settlement order, the city will be barred from enforcing those no-fault settlements across the board.

“This week’s settlement order has been a long time coming,” said IJ Nutjob Sam Gedge. “For years, New York City used the threat of eviction to break up families, forcing leaseholders to kick out children, spouses and siblings—many of whom were never charged with a crime. Other times, the city would force businesses to consent to warrantless searches and video monitoring. Monday’s settlement order delivers justice to the countless New Yorkers who were stripped of their constitutional rights in these ways.”

Through a program dating back to the 1990s, the New York Police Department often threatened to evict businesses and residents when somebody—even a total stranger—committed a crime at or near their property. Once eviction proceedings were underway, New York City’s prosecutors would then bully the businesses and residents into signing away their constitutional rights in order to avoid eviction. Parents would have to agree to bar their children from their homes. Businesses would have to agree to warrantless searches. Others would have to agree to waive judicial oversight of future sanctions imposed by the NYPD.

Laundromat owner Sung Cho learned about these practices the hard way. After undercover police officers came to Sung’s laundromat and offered to sell stolen electronics to his customers, the NYPD threatened to evict him from his business. The city said it would let him stay if he agreed to three demands: waive his Fourth Amendment right against warrantless searches, grant police unlimited access to his security camera system, and allow the NYPD to impose sanctions for alleged criminal offenses even without any opportunity for a hearing before a judge. Faced with eviction, he reluctantly settled on the city’s terms.

After Cho—along with co-plaintiffs David Diaz and Jameelah El-Shabazz—teamed up with the Institute for Justice (IJ) to challenge settlements like these, the city overhauled its no-fault eviction practices in May 2017. But thousands of New Yorkers remained bound by unconstitutional settlements that the city had extracted in the past. In changing its law, the city left them behind.

Monday’s settlement order grants relief to those thousands of New Yorkers.

...
Re the part I bolded: holding property owners responsible for the actions of criminals seems to be a popular idea but it's still not one I share.

Glad to see the nutjobs at IJ win again!

 

Pertinacious Tom

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Nutjob libertarians continue to assault the American way of life
 

This morning, the Commonwealth Court of Pennsylvania issued an opinion vacating and remanding a lower court’s ruling in favor of Pottstown in a lawsuit challenging the borough’s rental inspection ordinance. This law allows the borough to enter residents’ homes without cause and without the residents’ consent. The Court also reversed the trial court’s orders denying discovery to the Pottstown residents who challenged the law. This makes sure that as the lawsuit now proceeds on remand, the residents will have a full record of how these inspections are actually conducted—and what inspectors actually do once they are inside peoples’ homes.

The Court also rejected the borough’s argument that, in order for the tenants to challenge the law, residents would have to first submit to the borough’s invasive rental inspections. After Pottstown tenants Dottie and Omar Rivera and their longtime landlord, Steve Camburn, refused to allow inspectors inside their home, Pottstown obtained administrative warrants to search inside—but with no suspicion that anything was wrong. The Borough also attempted to search the non-rental family home of Pottstown residents Thomas, Kathleen, and Rosemarie O’Connor without their consent and with no search warrant whatsoever. These brave citizens sued Pottstown with the help of the nutjobs at Institute for Justice (IJ).
Much like corporations, tenants are sort of people too and might just have fourth amendment rights... 
Getting those records took a while.
 

...

On June 23, 2020, the court ordered Pottstown to produce “all requested documents.” Pottstown chose to defy this order and instead filed for a protective order in the Court of Common Pleas, asking for the quantity of documents it had to produce to be severely limited and for the right to withhold all electronically stored information.  

And that’s not all—Pottstown claimed, for the first time in the three years of this litigation, that producing these documents was so burdensome that the plaintiffs challenging the constitutionality of the rental ordinance should pay for what the court had ordered. The plaintiffs in the lawsuit, in reaction to Pottstown’s obstinate unwillingness to satisfy its discovery obligations, asked the court to allow the plaintiffs to appoint a computer forensics expert trained in data recovery to retrieve the borough’s files. Judge Haaz granted this request in Wednesday’s order. 

“Pottstown’s attempts to keep its unconstitutional inspections hidden from public view were always meritless, and we’re pleased to see the court recognize it as such,” IJ Nutjob Robert Peccola said. “With these records, we will be one step closer to vindicating Pottstown residents’ constitutional rights.” 



 

Pertinacious Tom

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Getting back to zoning disputes,

Sierra Vista Residents Sue City to Keep Their Homes in Place
 

Staring down the possibility of homelessness, three Sierra Vista residents ordered to move their RV homes sued the city today. The suit comes just days after the city council chose to enforce eviction orders initially issued in 2020. The Institute for Justice (IJ), which has been working with the homeowners since last summer, filed the lawsuit to protect the homeowners’ property rights under the Arizona Constitution.

“No one should be made homeless in the name of zoning,” said Paul Avelar, managing nutjob of IJ’s Arizona office. “There is no health or safety reason for kicking our clients out of their homes. The city’s eviction orders are senseless and cruel and come in the middle of a pandemic.”

...

Amanda Root has lived in Sierra Vista for 26 years and owned her property in Cloud 9 for 21 years. Unfortunately, Amanda’s manufactured home was lost to fire in 2016. Without insurance, she was not sure whether she would be able to afford another. Fortunately, friends donated the trailer she lives in now.

“I’m suing Sierra Vista because their order would make me homeless,” said Amanda. “I love my home, I take good care of my property and I shouldn’t have to move. It’s frustrating because I’m surrounded by houses that are falling apart and the city is doing nothing about them. I own this land, why should I have to go somewhere else?”

In July 2020, Cloud 9 residents received notices ordering them to move their homes within 30 days. The orders came without hearings, a procedure for appeal, or any court approvals. The city does not maintain that the homes are unsafe for their residents or a danger for the neighborhood. The lawsuit asserts that abusive zoning laws and failure to provide residents with due process before taking away their property rights are violations of the Arizona Constitution.

More broadly, restrictive zoning makes it difficult, and sometimes impossible, for people of modest means to live in modest homes.

...
Amanda Root sounds like a real piece of trailer trash, what with wanting to live in and care for her own home on her own property and all.

 

Pertinacious Tom

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Another zoning triumph as Seattle closes Yonder Bar
 

...

While Yonder Bar is closed, Yonder Cider is still available to buy online and in retail stores. And efforts continue to ensure Yonder Bar's hiatus will be temporary. Yonder has launched an online petition, asking supporters to tell the city to allow it to reopen. (Full disclosure: I signed.) And a freedom of information act request, which at least one party has filed with the city, could shed light on just who filed the complaints against Yonder Bar and—maybe—why they did so. 

Hopefully, the city will come to its senses. And soon.

"It's going to be funny when this lone complainer winds up getting a citywide zoning change that will legalize stuff like Yonder on every lot," the Seattle-based Twitter account Pushing the Needle tweeted hopefully this week.

That would be funny. And awesome. And the most just of results.
It would be a funny unintended consequence but doesn't seem all that likely to me.

 

Pertinacious Tom

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Nutjobs Challenge New York City’s Abusive Building Code Fines and Fees
 

In 2016, Queens homeowner Joe Corsini came home to find a piece of paper on his door. It was a notice from the city. He was being fined $3,000 because he moved his pigeon coop from his backyard to his roof and didn’t realize he needed a building permit. Joe was frustrated, but not deterred. He hired an architect—and a lawyer—and started to work with the city to bring the coop into compliance. The city set out a series of unreasonable requirements and after months of going back and forth, Joe finally gave up. Despite working with the city, however, it continued to fine him. When he finally gave up, the city had imposed $11,000 in fines—all for a pigeon coop. To make matters worse, to appeal the fines, he had to first pay them in full. Understandably, Joe tore down the coop and paid the fines.

Joe is not alone in being targeted by the city’s abusive building inspectors. This year, the city brought in nearly $1 billion in fines and forfeitures, much of it raised by the Department of Buildings. Next year, the city projects it will increase that amount by another $150 million. It can only do that by increasing inspections and fines.

Although Joe may have torn down the coop, he is not done fighting the city. Today, he partnered with the Institute for Justice, a nutjob law firm, to sue the city and put an end to its unconstitutional program of trapping property owners in a byzantine system of permits and fines that few can escape.

“New York City’s building code treats ordinary homeowners like a revenue source, regularly imposing huge fines for minor violations,” said Bill Maurer, a senior nutjob at the Institute for Justice. “An innocent mistake shouldn’t cost a homeowner tens or even hundreds of thousands of dollars in fines. The city’s system is so rigged against small property owners that few can escape unscathed.”

...

The Department of Buildings is not above the Constitution. When it imposes fines and fees on property owners, the owners must have a meaningful opportunity to be heard by an impartial adjudicator without the burdensome condition of paying everything upfront. This protection is the bedrock of due process and is especially crucial when the fines provide a financial incentive for the Department of Buildings to stack up penalties, as it did to Joe.

“The constitutional guarantee of due process for deprivation of property guards against precisely what the DOB is doing to unsuspecting homeowners across New York City,” said IJ Nutjob Diana Simpson. “Joe’s lawsuit seeks to put an end to the DOB’s role as cop, judge, and jury for the city’s building code. It will ensure that the city focuses on actual threats to public safety, instead of targeting small homeowners without the know-how or the resources to fight back against the city’s draconian system that lines its own coffers.”
I hope Mr. Corsini prevails.

 

Pertinacious Tom

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Administrative Searches and Article 1, Section 8 of the Iowa Constitution
 

...

Forced rental inspections are spreading like wildfire in Iowa. State law requires that cities with populations of 15,000 or more adopt a “program for regular rental inspections.” Orange City has a population of just over 6,000 but nevertheless passed a rental registration and inspection law in February 2021.

The lawsuit alleges that Orange City’s rental inspection program violates Article I, Section 8 of the Iowa Constitution, which guarantees the right to keep the government from unreasonably intruding upon private property. More broadly, the lawsuit asserts that the Iowa Constitution provides greater search and seizure protections than the federal Constitution as it has been interpreted by the U.S. Supreme Court, which narrowly carved out an exception in the 1967 case Camara v. Municipal Court.

“The Iowa Constitution is clear: If the government wants to enter your home, it should only be able to get a warrant if it provides real evidence that something is wrong inside,” said IJ Attorney John Wrench. “Orange City can’t use an administrative warrant to force its way into Iowans’ homes without even suspicion that anything is wrong.”

Erika’s landlord, Josh Dykstra, was stunned that these inspections would ever be considered by the city.

“It’s unconstitutional for the government to search through your property without a reason,” Josh said. “A cop cannot enter a property without a warrant. What makes city officials think they can barge in when police officers cannot?”

Amanda Wink, another plaintiff in the lawsuit, emphasized that the ordinance treats renters as second-class citizens.

“Me renting a house is no different than owning a house. My privacy shouldn’t be any less important,” Amanda said.

The Institute for Justice is the nutjob law firm for liberty and the nation’s leading advocate for property rights. IJ has successfully challenged a rental inspection program in Yuma, Arizona, and is currently challenging the rental inspection regimes of Pottstown, Pennsylvania, Zion, Illinois, and Seattle, Washington.

...
I tend to agree with Amanda. One of the concerns noted in promoting these programs is public health dangers from things like faulty wiring, which a tenant may not recognize as faulty.

I can't see how that would apply only to rental properties. Any of us might have faulty wiring and not be aware of it, even if we own our homes.

The Camara case referenced is kind of interesting and the opinion is shorter than the average wofsey post. It says in part:
 

...

If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant.

...

in the case of most routine area inspections, there is no compelling urgency to inspect at a particular time or on a particular day. Moreover, most citizens allow inspections of their property without a warrant. Thus, as a practical matter and in light of the Fourth Amendment's requirement that a warrant specify the property to be searched, it seems likely that warrants should normally be sought only after entry is refused unless there has been a citizen complaint or there is other satisfactory reason for securing immediate entry. Similarly, the requirement of a warrant procedure does not suggest any change in what seems to be the prevailing local policy, in most situations, of authorizing entry, but not entry by force, to inspect.

...

Assuming the facts to be as the parties have alleged, we therefore conclude that appellant had a constitutional right to insist that the inspectors obtain a warrant to search and that appellant may not constitutionally be convicted for refusing to consent to the inspection. It appears from the opinion of the District Court of Appeal that under these circumstances a writ of prohibition will issue to the criminal court under California law.

...
So an area-wide inspection program that pursues a valid public interest is something that will probably cause warrants.

 

Pertinacious Tom

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Along the same lines as the Vermont guy who put a giant middle finger on his property, there's now a First Amendment-Protected Toilet Garden in New York.

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