Introduction

Can the government force you to submit to an intrusive inspection of the most intimate areas of your home—your bathroom, or even your bedroom—without your permission? The city of Seattle says, “yes.” The Washington Constitution says “no.”

In Seattle, anyone renting an apartment or home must allow government-mandated inspectors into their home to inspect it for housing code violations, even if  they do not consent and the city does not have a warrant. The inspection itself is extremely intrusive—the checklist for the inspection is twelve pages long. It requires the inspector to examine the rental property’s bathrooms, bedrooms, sinks, bathtub, kitchens, and in some instances, the tenant’s refrigerator, for housing code violations.

Many tenants, understandably, strongly object to a stranger rooting through their home. Although an inspector can only report on housing conditions, a tenant’s home contains deeply private information about that person, like their medical, political, religious, and personal activities. A search of someone’s home reveals what they read, eat, and own, what their hobbies and interests are, what medications they take, how and with whom they sleep, where their children sleep, and who is important in their lives.

There are few things more intrusive to a person’s private affairs than a government-mandated search of their home.

Under the State of Washington’s Constitution, before the government can search the residence of a person who does not consent, it must obtain a warrant issued by a judge based on evidence that there is a problem in the particular property. Specifically, article I, § 7 of the Washington Constitution provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law”—or, in common language, the government cannot search your home without a valid warrant. Seattle has stripped tenants who live in rental units of this right.

Under Seattle’s rental inspection program, the city gives inspectors the authority to conduct warrantless and intrusive searches of homes of tenants, even when those tenants say, “No.”

The Institute for Justice has teamed up with a group of Seattle tenants and their landlords to file a class action lawsuit challenging the city’s unconstitutional rental inspection program.

This lawsuit does not seek to stop the cityfrom inspecting rental units where the tenants agree to the inspectionor keep the city from addressing problem properties. Rather, the suit seeks to stop the city from entering the private homes of Seattle’s renters unless the city gets the tenant’s consent or obtains a warrant based on evidence of a specific problem.

Seattle’s Unconstitutional Inspection Program

For many years, Seattle addressed housing code violations in rental housing using a complaint-based system. But in 2013, Seattle switched to a proactive rental inspection system, the Rental Registration and Inspection Ordinance, or RRIO, which took effect in 2015.^[1]The RRIO requires landlords to register their properties with the city. Noncompliance means they cannot rent any units, further reducing the housing supply in Seattle. To register, a landlord must obtain a certificate of compliance issued after an inspection. A landlord in Seattle may use city inspectors or a so-called “private” inspector. The word private is misleading because private inspectors are required to share their findings with the government when a property fails the inspection, making them just as much an agent of the government as an inspector paid by the city.

As the RRIO stands today, the city inspects 10% of the city’s rental properties (chosen randomly) each year.^[2]This represents thousands of apartments. Within ten years, the city plans to inspect all rental homes and apartments within its borders.

The RRIO also strong-arms tenants into warrantless searches by stating that “[a] tenant shall not unreasonably withhold consent for the owner or the owner’s agent to enter the property…”^[3]Under Washington law, if a tenant refuses entry, the city may seek a warrant to inspect the property.^[4]Tellingly, however, the city has never obtained, or even sought, a single warrant for rental inspections since 2013. Instead, the city conscripts landlords to serve as its enforcement officers.

Seattle Rejects Tenants’ Privacy

Plaintiffs Matthew Bentley, Wesley Williams, and Joseph Briere—along with their landlords, plaintiffs Sarah Pynchon and William Shadbolt—know firsthand that Seattle does not respect tenants’ privacy. On May 14, 2018, Ms. Pynchon and Mr. Shadbolt received an inspection notice for the rental home located at 12708 2nd Avenue, NW, the house in which Bentley, Williams, and Briere live with their three roommates. These tenants like their home, treasure their privacy, and have a good relationship with their landlords. To that end, on July 11, 2018, the six housemates wrote to the city to object to the inspection. The letter stated that they would not voluntarily allow a city or private inspector inside the home. The tenants’ letter stated that they were invoking their “rights under Article I, Section 7 of the Washington Constitution, which requires the government to obtain a warrant based upon individualized probable cause before it can conduct a rental inspection without consent.”

On July 14, 2018, Ms. Pynchon, their landlord, also wrote to the city to inform the city that the residents of the property were refusing a government inspection of their home and that she fully respected her tenants’ decision in the matter. When the city responded to Ms. Pynchon’s letter it extended the date by which the inspection must occur to October 15, 2018, but otherwise ignored the tenants’ constitutional arguments against the inspection—indeed, the city has never actually responded to the housemates, just the landlords. The letter threatened Ms. Pynchon and Mr. Shadbolt with penalties of up to $150 a day for the first ten days of noncompliance and $500 per day thereafter for their tenants’ refusal to grant consent to the city’s inspection.

After the tenants sent another letter refusing to submit to an inspection, the city responded on November 14, 2018, to Ms. Pynchon and threatened action against her for respecting her tenants’ privacy: “[U]nder RRIO it is your obligation to complete the inspection. Any enforcement action resulting from failure to complete the RRIO inspection will be taken against you. At the same time, your tenants have an obligation to not unreasonably deny you access for activities such as an inspection.”

The Plaintiffs

Mr. Bentley, Mr. Williams, Mr. Briere, Ms. Pynchon, and Mr. Shadbolt are not the only Seattleites concerned with the city’s unconstitutional warrantless rental inspection program. Because the city plans to inspect all rental buildings within ten years, every tenant renting a house or apartment faces the possibility of warrantless search. Plaintiff Keena Bean is a tenant in an apartment home that is currently subject to Seattle’s rental-inspection program. Ms. Bean is a young professional who cares about maintaining privacy in her home. She values her right to determine who will enter her home as well as who will have access to her living space and would never invite a stranger into the private areas of her home. She finds the idea of a stranger looking through her house inappropriate and disturbing.

Keena’s landlords, plaintiffs John B. Heiderich and Gwendolyn A. Lee, have owned and operated rental properties in Seattle for more than forty years. They care deeply about their tenants and cultivate long-term relationships with their renters. They are unwilling to act as the vehicle by which the city will intrude into Ms. Bean’s home without her consent and are committed to helping their tenant protect her constitutional rights.

Plaintiff Boaz Brown is a full-time student who live in a rental home that is currently subject to Seattle’s rental-inspection program. He values his privacy and security in his home and does not want inspectors to enter and learn about his personal information.

These individuals represent a proposed class of Seattle tenants and landlords who do not consent to the city’s warrantless inspection regime. A victory in this case will not only protect the rights of the named plaintiffs, but also the rights of all other tenants and landlords in Seattle.

Protecting the Homes and Private Affairs of Washington Residents

The lawsuit brought by these tenants and landlords asks the King County Superior Court to declare unconstitutional Seattle’s policy of forcing nonconsenting tenants to submit to warrantless housing inspections. The suit also seeks to require the city to obtain a warrant from a judge based on individual suspicion (also known as traditional probable cause) that there is a problem with a property before the city may enter and inspect the home.

The Washington Supreme Court has made it clear that a private inspector who acts as a government agent by reporting the results of a rental inspection to the government violates the protections of article I, § 7 of the Washington Constitution. Seattle, however, forces inspectors to report the results of an unsuccessful inspection directly to the city—precisely what the court has prohibited. As a result, tenants and landlords have filed this class action lawsuit to force the city to abide by the law.

Unfortunately, Seattle is not alone among Washington cities in forcing tenants to submit to warrantless housing inspections of rental properties. Despite the language of the Washington Constitution, the State of Washington permits municipalities to conduct similar warrantless inspections where private inspectors must report their findings to the government.^[5]Because Seattle could proceed under the Washington law even if a court strikes down its own ordinance, the tenants and landlords are also challenging Washington’s unconstitutional state statute.

Eroding the Privacy Protections of Renters

These invasive rental inspections are part of a national trend. Across the country, municipalities have steadily chipped away at renters’ privacy and property rights. Many cities use something called “administrative warrants” to inspect the homes of tenants and landlords who do not consent to government inspection regimes. Unfortunately, in 1967, the U.S. Supreme Court held that these kinds of “warrants” complied with the Fourth Amendment, even though they do not require the government to have individualized probable cause before it inspects a property without the tenant’s consent.

The good news is that the Washington Constitution provides greater independent protections for the homes and private affairs of its residents than those recognized under the Supreme Court under the U.S Constitution. In this case, the plaintiffs are asking the courts to recognize and reaffirm these protections. The Washington courts must act now to ensure that tenants are treated not as second-class citizens whose rights and privacy can more readily be invaded by the government than those who own their homes.

The Litigation Team

This case is being led by the Managing Attorney of IJ’s Washington office, William Maurer, and IJ attorney Rob Peccola.

About the Institute for Justice

The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for property rights. IJ has successfully challenged rental inspection programs in Park Forest, Illinois and Yuma, Arizona, and is currently challenging the rental inspection regime of Pottstown, Pennsylvania. IJ has spent more than 25 years fighting for the rights of all Americans to be secure in their homes and businesses and safe from abusive government policies. IJ’s victories have saved homes and businesses, including: the home of an Atlantic City widow; a small repair shop in Arizona; 17 homes and businesses in Lakewood, Ohio; and a boxing gym for inner city youth in National City, California.

^[1]Seattle Municipal Code 22.214.

^[2]Seattle, Wash., Code § 22.214.050(A).

^[3]Seattle, Wash., Code § 22.214.050(H)(1)(d).

^[4]Wash. Rev. Code § 59.18.150.

^[5]Wash. Rev. Code § 59.18.125.