Property Rights Foundation of America®

from PRFA's Twelfth Annual National Conference on Private Property Rights
October 18, 2008

Is Your Rental Home Your Castle?—
Administrative Warrants and Personal Privacy in the Twenty-First Century

Robert McNamara, Esq.
Attorney, Institute for Justice, Washington, D.C.

Thanks very much, Carol, for that kind introduction and for all your work in putting together this conference. It's late in the afternoon, so I will be brisk and I will be brief.

Let's begin with a story. Ken Black, who lives in a suburb of Chicago called Park Forest, Illinois, was sitting at home one afternoon, a balmy October afternoon, recovering from a back injury that he had suffered at work, when he heard a knock at his door. Going to his door, he saw a police officer standing next to a man in nondescript clothes he had never seen before, and he heard the words that every young man hopes to hear, "We have a search warrant and we'd like to go through your home."

Ken explained that he didn't especially want to let them into his home, that he was actually in excruciating pain and that he would prefer that they just went away. And after a brief conversation they did go away, but the man in nondescript clothes stuck his finger in Ken's face and he said, "But we'll be back."

So what did Ken do? Is he suspected of dealing drugs? Were there allegations of child abuse? No. The government really just wanted to poke around. Park Forest had a law requiring that all residents of rental properties, and rental properties only, needed to open their door to government inspectors at "any reasonable time." That means that if the government felt like coming in, looking around his house, checking to see if there might be any violations of the housing code, he was required to let them in.

That was in 1995 and that sparked what has now been thirteen years of litigation by the Institute for Justice. And Carol told you a little bit about who IJ is. I'd just like to flesh that out a little bit. As she mentioned, we litigate for economic liberty, First Amendment rights, and educational choice. We also litigate for property rights. We're most well known in that area for our eminent domain work. We're the lawyers who represented Susette Kelo in the "landmark" Supreme Court case. We have litigated eminent domain cases in states across the country.

But eminent domain is mostly about "whether" you have property, whether you can keep your property, or whether the government may take it away from you. Our rental inspection cases are about "why" you have property. And you have property primarily because property is a place where you can stand on your own two feet and have something that is actually yours.

For centuries, the purpose of private property has been to allow you to exclude other people who you don't feel like seeing, to have a portion of your life that need not be lived in public. It was perhaps best stated by the great English commentator on the common law, William Blackstone, who said that even in the meanest cottage the right of privacy must prevail.

"It may be frail, its roof may shake, the wind may blow through it, the storms may enter, the rain may enter, but the King of England may not enter. All his forces dare not cross the threshold."

Well, the King of England and all his forces don't have anything on rental inspectors. Rental inspections date back to approximately 1946. The traditional principle that the government may not force its way into your home just to look around has usually found its way into two primary protections. The first is that the government is not allowed to come in and look around unless they actually expect to find something, unless they have what's called "probable cause." This makes sense. If you want to come into someone's home and look around, you need to explain what it is you're looking for and why you expect to find it there.

The other aspect of the protection is that they are required to have a warrant. Someone other than the person doing the search has to decide that the search will be a good idea. Which again makes sense. Obviously, if left to their own devices, everyone would always think their plan to search was a good idea. Often it isn't.

Those requirements, however, have been relaxed since 1946, when the Supreme Court gave its approval to what's called an "administrative warrant." This is a warrant designed to further a regular system of inspections to support housing codes. I want to be clear that, at the time, that didn't seem like a crazy idea. The Supreme Court rested its decision on the idea that things can be wrong with a house, for example, faulty wiring that could cause a fire that could burn down the entire neighborhood. Therefore it made sense that counties and municipalities would want to come in on a regular basis to look at the wiring, to make sure there wasn't some deep threat to the public health. It made sense then, but as I see time and again in my line of work, if you give the government an inch it will take your yard. And that's essentially what's happened.

The public health exception to the traditional warrant requirement has grown wildly apace. We have had clients in places ranging from Georgia to Illinois cited for housing code violations such as windows that were painted shut. One of our clients in Georgia was actually cited for too many dirty dishes being stacked in his tenant's sink. It's not entirely clear what he was supposed to do about that. But given the minutiae of housing codes, you can see the expansion of the search.

It's one thing to let a government official into your house, to go into your basement, to look at the wires to make sure it was safe from fire, and to walk away. If the housing code encompasses how many dirty dishes are in your sink, and if it encompasses how much dirt is on your windowsill, and if it encompasses what kind of mold may or not be growing in the back of your closet, suddenly the searches need to be a lot more invasive. And they are a lot more invasive.

We have seen municipality after municipality pass rental inspection codes that take full advantage of what the federal courts have allowed them to do. And we see these for basically three reasons: paternalism, prejudice and policing.

Paternalism, the idea that government knows better than us whether tenants are being well served. Policing, the idea it's always nice if the government can go look in on us. Who knows what you're getting up to and we might want to know about it. And the third, prejudice. Often we see municipalities adopt these draconian rental inspection codes, explicitly or implicitly, just because they don't like renters. It's better if people owned their homes, homeowners are a better class of people, and we really would just rather if you renters and people like you got out of our pleasant little town. And so we're going to make it as unpleasant as possible to maintain a rental property, and as unpleasant as possible to live in a rental property.

An excellent example of this is a case we're litigating right now in the state of Minnesota, against a small city there called Red Wing. Red Wing has a long list of the classic hallmarks of these abusive administrative search programs that the Institute for Justice has been challenging for the past thirteen years.

They can conscript landlords. They take landlords and turn them against their tenants, forcing them to comply. The law imposes a duty on the landlord to open up the tenant's space and let a city inspector in when the city inspector demands to come in. Because the rental is part of his business, the landlord is threatened with the revocation of his business license to continue renting. Even if the landlord doesn't have the right of entry to serve, the landlord has been conscripted and if he doesn't become an arm of the state, doesn't get out his keys, unlock the door when the tenant isn't home and let an inspection officer walk through, he will have his business license revoked.

Again, like many of these codes, it punishes people for not complying. It punishes the landlord but it also punishes the tenant. Under the federal Constitution, you have the right to stand at your door and deny the government entrance. You have every right to say, "I demand to see a warrant before you come in." And they admit that you have the right to say, "I demand to see a warrant." They just wrote their law in such a way that if a building is not inspected within a certain time period it has to inspect, then you will be evicted.

You can ask for a warrant. But if the judge says he won't give them a warrant, they will evict you because you haven't had it inspected. Hold on to that for a second.

The First Amendment gives you the right to, say, publish a newspaper. What if the government were to say, "You're perfectly free to publish a newspaper, but if you publish a newspaper, we're going to kick you out of your home. Your decision, your right, but we're going to kick you out of your home." Is that something that would that pass muster in most cities and counties in this country? And yet there is no objection to rental codes like Red Wing's.

A third way in which Red Wing is typical of rental inspection codes we see, and indeed it goes far past other rental inspection codes we've seen, is the type of search they authorize. Red Wing city officials will come into your house. They will open your closets, They will rearrange things in your closets to make sure they haven't missed anything. They will check for dust on your windowsills. They will open your medicine cupboard in your bathroom. They will photograph this. They will then put these photographs on a database and they will then put that database on a server posted in the police department, in case the police department wants to take a look. And they have the technology available and actual concrete plans to then put their entire database on the Internet.

So not only does the inspector get to know everything about your life, not only do the police get to know everything about your life, the Internet gets to know everything about your life. And don't you dare ask for a warrant.

That goes to the heart of what I'd like to be able to address today. This is the nature of privacy, the importance of privacy, and how important we take privacy given our status as people who believe in private property.

Most people in the room are probably old enough to remember 1996 when Bill Clinton was running for President and he did a Town Hall on TV to connect with young voters. He was asked the incredibly important public policy question, "Boxers or briefs?" And there was great debate in 1996 about whether this proved that young voters were stupid or whether this was just a sign of our coarsening political discourse that he would be asked to discuss this in public.

But the building inspectors in Red Wing will know. The police in Red Wing will know. And that is, I think, the heart of the issue here. It speaks for the mentality today that all too commonly in cases like this, there is an effort to try to shift the burden onto the tenants or onto the landlords, onto people who are trying to protect their privacy, and say, "Well, what is it you're trying to hide? What's wrong with you that you can't just let us troop through and take pictures of your home? After all, we're trying to protect you."

And when people say that to me, I always like to ask them if they made their bed this morning and if they'd mind if I check.

But this is something that, for whatever reason, used to be a visceral reaction in Americans and, I think, people across the world. And it has become less visceral. For whatever reason, be it the explosion of the Internet, be it the fundamental change in culture, people seem to care less. Whether you own your home or whether you rent your home, for the question of simply letting someone across the threshold of your home, it's important to understand that this distinction between people who live in their home and people who rent their homes doesn't come from the Constitution. It comes from the imagination of city officials in places like Red Wing.

The Constitution doesn't care whether you own your home or whether you rent it from someone else to live in your home. It cares that you have a home and that you are safe in it and secure in it from government intrusion. Every such intrusion conveys public information. You may not want your neighbors to know, for example, if in your bedside stand you have condoms. But you may not want your neighbors to know if, in your bedside stand, you do not have condoms. It's not a question of having embarrassing things, it's a question of having a simple private sphere in which you can act as you choose without letting strangers come in and examine your DVD collection. And examine your computer. And figure out when you last took out your recycling or, God forbid, if you failed to recycle. These are not crimes.

And it is all too common in the Fourth Amendment to think in the context about privacy in terms of crime, to talk in terms of police investigations. But our clients aren't criminals. We represent both tenants and landlords who simply believe there should be parts of your life that don't have to make it on the Internet. That should be a choice you have.

It is important to think what property is, how to protect it and how to keep it. But while a lot of the talk today, frankly, a lot of the work we do at IJ, is about what property is, we should not lose sight of "why" property is. It is no less offensive for the government to outright take your property than it is for the government to take what makes your home so important in the first place, and that's your privacy.

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