Washington, D.C. –This past October, an official of the Village of Park Forest (a suburb of Chicago) and a police officer unexpectedly arrived at the door of Ken Black holding a search warrant and demanding entry. That same month, Debra Taylor arrived home from work to discover a notice on her door announcing that the Village had a search warrant for her home.
Why is the Village demanding entry into Black’s and Taylor’s homes? Suspicion of drug dealing? Allegations of child abuse?
No. The Village demands to search their homes to satisfy itself that there are no infractions of the Village’s housing code–a demand it makes only upon those who rent, as opposed to own, single-family homes. In fact, if you rent a home in Park Forest or in some other cities across the country, city housing inspectors can come into your home to rummage around your bedroom and bathroom without your knowledge or consent and without a warrant based on the mere possibility that they could find a housing code violation.
“Most people think of their home as a castle, the one place where government must unquestionably respect their privacy and property rights,” said Scott Bullock, an attorney with the Washington, D.C.-based Institute for Justice in Washington, D.C., which will file suit December 21, 1995, on behalf of several Park Forest tenants seeking to vindicate their private property rights under the Fourth Amendment to the U.S. Constitution. “Park Forest tenants are denied their essential rights through the government’s unfettered application of its housing code.”
The resulting decision from the case could set a national precedent to bolster protection for the right of property owners to exclude outsiders from their property.
“If government inspectors want to enter a tenant’s home, the U.S. Constitution demands that they ask for and receive either the explicit consent of tenants or, if consent is denied, a search warrant based on some reasonable suspicion that the housing code is being violated,” said Bullock.
The Park Forest ordinance is part of a growing trend among governments at all levels (through overzealous regulation, asset forfeiture, and open-ended and intrusive inspection laws) to restrict the fundamental tenet of property rights: the right to exclude others. Among other cases, the Institute is challenging a similar inspection law on behalf of apartment tenants in Kalamazoo, Michigan; it is challenging a Minnesota wetlands law that allows the public to intrude on the private property of a brother and sister; and it has filed legal briefs defending the right of an Oregon store owner to expand her business without yielding to extortive conditions requiring her to relinquish part of her property to the public.
Park Forest is quite serious about conducting its inspections. A few weeks after inspectors were turned away from the Black and Taylor homes, the tenants received notices in the mail informing them that they were being sued by the Village. The Village asked a state judge to hold the tenants and their landlord, Rick Reinbold, in contempt of court and to imprison all of them for at least a 24-hour period so that the Village could conduct its inspections. Also, inexplicably named in the suit and subject to incarceration was Ms. Taylor’s 12 year old daughter, Aftan.
“My daughter asked me how the government could jail us for wanting to keep strangers out of our house,” said Debra Taylor, who along with other tenants joined in the lawsuit filed by the Institute. “I did not have a good answer for her. Just like everyone else, I should have the right to decide whether someone may or may not come into my home. The government should not be allowed to treat me like a second class citizen merely because I choose to rent, rather than own, my home.”
The Village’s housing code allows inspectors to conduct searches at “all reasonable times,” thereby destroying a tenant’s right to exclude. Moreover, when conducting inspections, the Village does not seek the consent of tenants. Instead, the Village demands that landlords provide access to rented homes, cutting the tenants entirely out of the process.
In fact, it was Reinbold who first objected to the inspections. Reinbold, a former Navy diver and Vietnam veteran, takes the Constitution seriously: “I did not think the Village had a right to conscript me to gain entrance to the tenants’ homes. The tenants should decide for themselves whether or not they want government officials in their homes. The Village’s law is nothing less than an end-run around the requirements of the Constitution.” For this principled stand, the Village fined him $1,500, which a judge later dismissed.
“The Village’s policy of ignoring property rights is an example of grass-roots tyranny spreading nationwide,” said Chip Mellor, general counsel and president of the Institute for Justice. “Even as government attempts to protect the safety of the public, it cannot run roughshod over private property rights.”
Perhaps nowhere has the right to exclude been more undermined than in the context of the so-called “administrative search” doctrine, which allows government officials to conduct searches of businesses and other commercial properties on their word that such inspections are necessary to protect public health and safety. The Institute’s lawsuit seeks to halt the creeping erosion of property rights when governments engage in administrative inspections.
The Institute for Justice advances a rule of law under which individuals control their destinies as free and responsible members of society. Through strategic litigation, training, and outreach, the Institute secures greater protection for individual liberty, challenges the scope and ideology of the Regulatory Welfare State, and illustrates and extends the benefits of freedom to those whose full enjoyment of liberty is denied by government. The Institute was founded in September 1991 by William Mellor and Clint Bolick.