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Monday, November 22, 2010

Dana Berliner: Raising alarm over city's home searches

Please click onto the COMMENTS for the story.

28 Comments:

Anonymous Tribune said...

Lower courts have ruled that residents can't sue over Red Wing's inspections.

By DANA BERLINER

Last update: November 21, 2010 - 6:31 PM

In the next six weeks, the Minnesota Supreme Court will decide whether to review a case that has sweeping implications for the constitutional rights of all Minnesotans.

The case, McCaughtry vs. City of Red Wing, comes under the guise of a technical legal issue called "standing," but it is really about the right of Minnesotans to bring lawsuits challenging unconstitutional laws and preventing the government from violating their rights. The lower courts that heard this case have sharply limited the ability to seek rulings from Minnesota courts on important constitutional questions, and every Minnesota resident should be alarmed by that result.

Here's how it worked: The city of Red Wing passed a law authorizing it to go into all rental homes in the city, supposedly to look for housing code violations. Inspectors look in every room, including bathrooms, bedrooms and, if they think it's necessary, closets as well.

The inspections of course reveal all sorts of personal information about the inhabitants, from their religious beliefs to their love lives to their wealth or poverty. It's no wonder that a group of tenants and landlords banded together to fight these inspections.

The tenants and landlords believe that Red Wing's law violates the constitutional right to be "secure" in one's "houses, papers, and effects" (as guaranteed by the Fourth Amendment), and so they refused to allow the government to enter their homes. When Red Wing applied for warrants to search their homes -- in 2007, 2008 and 2009 -- the tenants and landlords successfully opposed those warrants. The lower court ruled each time that the warrant was illegal or unconstitutional, but it didn't stop Red Wing from applying again. In fact the city has admitted that it intends to keep on trying to get the warrants.

4:14 PM  
Anonymous story continued said...

The tenants and landlords are certainly glad the trial court refused to grant the search warrants. But they are also understandably tired of going to court every year, preparing affidavits, mounting a massive legal presentation, and suffering the attendant anxiety and uncertainty about their future rights.

Instead, they would like a final legal decision about whether these warrant applications and proposed searches are constitutional in the first place.

To obtain such a decision, the tenants and landlords brought a separate lawsuit arguing that Red Wing's law is unconstitutional. Unfortunately, in September of this year, the Minnesota Court of Appeals refused to rule on whether the law violated the rights of tenants and landlords. It ruled that the tenants and landlords lacked "standing." One must be injured by a law in order to challenge it, said the court, and getting dragged into court three years in a row isn't enough of an injury.

This sounds like the kind of technical issue only a lawyer could love, but in fact, the issues in this case have enormous implications throughout the state.
First, more and more municipalities in Minnesota are enacting similar rental home inspection programs. Minneapolis, St. Paul and many other municipalities now authorize searches of people's homes without their consent.

According to the courts, no one in any of these cities can challenge these laws until the inspector is knocking at the door with a search warrant. Even if each and every law is unconstitutional, thousands of residents will be subjected to enforcement of those laws without any recourse until it is too late.
Second, the lower courts' rulings have frightening applications. The law in Minnesota is supposed to be that those who are subjected to a law have the opportunity to challenge that law, under the Minnesota Declaratory Judgments Act. But if other courts adopt the reasoning of the courts here, then such challenges will no longer be possible.

Imagine what that means in practice: If you were charged with a crime, you couldn't challenge the constitutionality of the underlying law until after you were arrested or convicted.

Not only does the Minnesota Court of Appeals' ruling make no sense, but it also puts every Minnesotan's rights in jeopardy, by taking away the main avenue for finding out if the government's actions are constitutional. The state Supreme Court should take this opportunity to make clear that people may still challenge unconstitutional government action in Minnesota.

Dana Berliner is a senior attorney with the Institute for Justice. For more information on this case, visit www.ij.org.

4:14 PM  
Blogger Bob said...

Hi All,

This story is more of that Big Brother shit I preach about often. There is a reason I have George OrWell's pic on my profile.

I know folks in law enforcement and city government in Red Wing. I was born in Red Wing. I have relatives who live there. I spend A lot of time in Red Wing. I know the people of Red Wing.

This is all about strangers moving to Red Wing. Mostly black and on section 8.

The values our country was founded on and the constitution are mere obstacles to these fascist in Red Wing and Saint Paul city governments.

How many of you on the city council in Red Wing or Saint Paul would be willing to offer up your homes to housing inspections just like the renters.

As long as it is somebody else's rights being violated others don't seem to give a damn. OR,citizens are busy with their lives and ignorant to the erosion of their freedoms. I couldn't tell you how many times I have heard someone complain to me "I didn't believe this could happen to me"!

Go ahead and allow these kinds of inspections you ignorant masses! Go ahead and open the pandora's box leading to the demise of our freedoms.

I will be right here telling all that didn't believe me, "I told you so"!

5:25 PM  
Anonymous Anonymous said...

Here is what the U.S.Supreme Court is going to say according to Cardnial Estates vs City of Morris Minnesota :

" The U.S. Supreme Court has held that administrative searches to enforce building codes, so long as properly conducted, are reasonable and constitutional ".

The Minnesota Courts, according to the Cardnial case, will affirm the cities right to enforce a search warrant so long as it is done properly and the final test is balancing the resident or owners rights with those of Government. I will get the Minnesota Court case for Cardinal for those here interested and post it.

Sorry, but the Government will win this.

But, how pathetic that Redwing has to revise it's code 3 times because it's prior requests for 3 administrative warrants were improper and rejected.

This case number is Minnesota Court of Appeals A10-332 and is unpublished but accessible via www.lawlibrary.state.




Jeff Matiatos

5:36 PM  
Blogger Bob said...

" The U.S. Supreme Court has held that administrative searches to enforce building codes, so long as properly conducted, are reasonable and constitutional ".

Does this include private homes Jeff?

The people on the Supreme court who passed this crap are SICK! I'd like to lead the inspection of their homes.

This is something that needs to be reversed.

5:42 PM  
Anonymous Anonymous said...

The Cardinal case is CX-02-1505 and an unpublished opinion.
As far as I can tell, city home searches are legal. bo

Jeff Matiatos

5:43 PM  
Anonymous Anonymous said...

Bob, go to the state lawlibrary site and type in the cases and you may post the bad news if you want.




Jeff Matiatos

5:45 PM  
Blogger Bob said...

I will check these cases out later this evening Jeff. I have company coming over. Thanks for the info.

I hope there is really tough standards to meet to obtain the warrant.

I don't know how many of you have ever watched the show "Hoarders", I can see some instances where an adminstrative warrant would be nessary in the interest of helping someone like this who was living in squalar. However, I also can understand how a warrant like this could be abused by corrupted government officials.

5:52 PM  
Anonymous Anonymous said...

Just doing my part to help seek the truth. Pro-Bono of course ;)




Jeff Matiatos

5:55 PM  
Anonymous Anonymous said...

Having submitted cases that confirm the cities right to enter the dwelling with a probable cause warrant, the remaing issue in conflict here was "standing" to challenge the right of the city to inspect.

I disagree that any other case be reversed for lack of standing to challange the constitutionality of the citys ordinance when that ordinance seeks to impose an invasion of ones personal residence without proof of irreparable harm to a person, or where a critical housing or unless serious building code violations needs to be attended too.
On the other hand, A tenants personal residence merely inside the landlords building is protected as private under the constitution but still subject to inspection.

But the city here is seeking to inspect a buisness ( rental dwelling ).

If a judge were to review the warrant affidavit and determine probable cause existed to show that a state or local city housing code ( of a serious nature ) is being violated or that a dangerous condition exists inside the building that presents an irreperable harm to any person, a warrant should issue and the U.S.Supreme Court has stated this.

The Supreme Court has stated that Government laws are presumed constitutional and at the first instance, all judges are to treat the laws that way.

McCaughtry loses here because of that presumption and their only remedy is to attack the affidavit for the warrant AFTER THE FACT and sue for constitutional violations if the affidavit for the warrant was false and made up. Then their exists standing the constitutionality of the cities action.





Jeff Matiatos

7:50 PM  
Anonymous Anonymous said...

But Jeff, what about random inspections ? Don't you think that if the city is not permitted to annually inspect a rental dwelling that the landlord will be ignorant in keeping up the place because he knows no one is watching him ? Afterall, people like Stienhauser can continue to be neglectful of their properties.

7:59 PM  
Anonymous Anonymous said...

AAAAAAAAAAAAARRRRRRRRRRRGGGGGGGGGGG....

Bob...

It makes perfect sense that someone doesn't have "standing" until the government actually tries to inspect their property.

In order to sue, someone has to do something to you. You can't go to court claiming the government might inspect you for no reason.

The court has to see if what the City did made sense. They passed an ordinance and haven't been able to use it. Once they use it then someone has standing and anyone who wants to help pay for them can jump on board.

DUH

JMONTOMEPPOF

Chuck Repke

11:33 PM  
Anonymous Anonymous said...

I think the legitimate concern for landlords and tenants is that a citys intrusion to inspect ones property or residence is arbtray when they have no complaints from either tenants or neighbors to justify the intrusive inspection.

I just don't feel that Government can create ordinances requiring inspection in the absence of a complaint. This is the problem.

I mean a constitutional right to privacy is a critical right that should not be intruded upon on by the city by the mere speculation that simply enforcing a code may yeild some sort of violation. If i was a Supreme Court Justice, I would vote to dissent in favor of the landlords and tenants on these grounds.




Jeff Matiatos

12:09 AM  
Anonymous Anonymous said...

" arbitrary " Ooops

12:10 AM  
Anonymous Anonymous said...

By the way, the case that sets precedent for this issue is :

Camara V. Municipal Court 387 U.S.523 ( 1967 )

12:14 AM  
Anonymous Anonymous said...

Afterall, people like Stienhauser can continue to be neglectful of their properties.


Frank was a good landlord. His tenants said so!

8:50 AM  
Anonymous Anonymous said...

Jeff,

It may very well be a bad law, but it has to be used before someone can sue over it.

That is was all the court said.

It is like what we have gone through on Instant Run Off Voting.

Those of us that oppose IRV claim that IRV will disenfranchise minority voters. That there will be more minority voters who will have their ballot become "exhausted" and therefore not counted in the final rounds of IRV ballot counting, and therefore be harmed by this new counting system.

The state supreme court said... it hasn't happened yet... so, you don't have a case.

Same deal.... there hasn't been these inspections in Red Wing.

JMONTOMEPPOF

Chuck Repke

9:21 AM  
Anonymous Institute Justice said...

For what its worth www.ij.org has the whole case

It seems to me the City lost one with the Port Authority when Institute Justice represented them

Jeff Thanks for your input would appreciate your email address to notify Thanks

10:11 AM  
Anonymous Anonymous said...

If you are smart Jeff you will pass on the email invite or your dailey email will be full of junk you cannot understand.

10:44 AM  
Anonymous Anonymous said...

If you read between the lines Repke what the court said was that the coty is screwed and they better pay or get their ass kicked by a jury.

10:46 AM  
Anonymous Anonymous said...

If you want to attack the Government for violations of your privacy rights in the context of cases of search and seizure you want to use the U.S. Supreme Court case :

Bivens VS. Six unknown agents of Federal Bureau of Narcotics 403 U.S.388.

Jeff Matiatos

10:49 AM  
Anonymous Anonymous said...

I wouls suggest that the institute for justice file to the courts for an award for attorney costs for the repeated and failed attempts to get warrants because they have violated Minnesota Court Rules of civil procedure 11.

Another remedy is to sue the city for malicious prosecution or abuse of process.

If this case is ongoing it's not to late to file a motion for sanctions.





Jeff Matiatos

11:05 AM  
Anonymous Anonymous said...

Thanks Jeff, you bring a lot to the table here.

Sandy

11:43 AM  
Anonymous Anonymous said...

Thanks Sandy, I don't know you or what you do but I'll have you know that my experience's in the legal arena has been an experience that I will never regret getting involved where being proactive in legal representation for myself and perhalps others has been an uplifting experience.

I feel empowered now that I know what I know about the law and how the judicial system works.

My experiences in the courtroom taking on city hall is well documented in various countys in Minnesota and mostly in Ramsey County.

I have also, several letter from various attorneys seeking my opinion on legal matters.

I cannot speak further of my covert underground efforts to assist those in need of legal guidance. Any thing more than that might be an unauthorized practice of law LoL :)



Jeff Matiatos

12:22 PM  
Anonymous Anonymous said...

I wonder if PHA is also subject to searches ?

8:12 PM  
Anonymous Anonymous said...

We give thanks for having such a devoted city that looks after us.


Happy Thanksgiving everyone

8:38 PM  
Anonymous Anonymous said...

8:38 PM

Hitler looked after his people with a group called DSI I mean Nazi storm troopers.

6:26 AM  
Anonymous Municipalities said...

http://jurist.org/paperchase/2010/11/supreme-court-upholds-limits-on-municipal-liability.php

3:54 AM  

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