Regulating Around the Fourth Amendment

Radley Balko | December 29, 2006

One of the interesting implications of the Manassas Park pool hall case I've been following is that the initial police raid on the bar was conducting under the auspices of a state alcohol inspection. The raid was clearly part of a criminal investigation, but bringing the police in under the formality of an ABC inspection negating the need for a search warrant.

This to me is the most troubling part of the recent federal circuit court ruling dismissing the civil rights suit filed by David Ruttenberg, the owner of the bar. The judge found that bringing 70+ police officers , some in ski-masks and pumping shot guns as they entered the bar, turning a business upside down, and handcuffing many of its customers -- all for the alleged purpose of checking to make sure the bar was complying with Virginia's alcohol regulations -- was not so unreasonable as to violate the Fourth Amendment.

The message to local law enforcement seems clear: If you want to search a business but can't get a search warrant, just pretend you're doing a regulatory inspection, and search the place anyway.

Manassas Park isn't the only place this is happening. The city of Buffalo, New York, for example, has been using a program called "Operation Clean Sweep," in which the city sends officials to bad neighborhoods on alleged good will missions -- to hand out smoke alarms, and check for fire and building code violations.

In a recent op-ed for the Buffalo News NYCLU director John A. Curr III explained why the program is less a community service program than an end-around the Fourth Amendment:

Although the City of Buffalo maintains that the Clean Sweep initiative is directed toward cracking down on quality-of-life problems and improving troubled neighborhoods, we find its tactics questionable at best, and disingenuous at worst.

According to information obtained through Freedom of Information requests, the Western Regional Office of the New York Civil Liberties Union found that in the past, these operations have been planned in meetings at the U.S. attorney's office, an odd place to develop neighborhood improvement initiatives.

Moreover, certain documents were refused to us because of ongoing investigations by the Drug Enforcement Administration.

If this is not a law enforcement operation, subject to the due-process provisions of the law, then why are taxpayer dollars being wasted so that highly paid Buffalo police, state parole, county probation, U.S. marshals and representatives of the U.S. attorney's office can go door-to-door distributing smoke detectors and checking for illegal gas and cable hookups?

Since at least 2002, the NYCLU has monitored these thinly veiled subversions of the Fourth Amendment. The means being used to carry out these operations are illegal, intimidating and deceptive to citizens in neighborhoods that really need assistance, not just once-a-year invasions by city, state and federal government agents.

Given the overwhelming poverty in this city, the idea of taking one block of one street in one district once a month (during warm weather) and trying to convince people that these efforts are actually conducted to provide assistance is ludicrous and exploitative.

And what of the secrecy? If the mayor really wants to help these neighborhoods, why aren't the sweeps announced ahead of time so that residents can arrange to be at home and are better prepared to alert officials to all of the health, safety and quality-of-life issues they are concerned about, not simply whatever occurs to them at the moment?

Earlier this year, I wrote a piece for reason about some related overly-aggressive endeavors undertaken by the Buffalo police department.

Comments

|12.29.06 @ 11:55AM|#

Alcohol regulation is the ten headed monster that is eating the Constitution. It already ate the 4th and 5th Amendments when it comes to DUI laws and now it is killing the 4th Amendment at bars and restaurants.

|12.29.06 @ 11:58AM|#

The behavior in Buffalo is not only outrageous, but counterproductive.

Good luck to the next beat cop who actually tries to establish a positive relationship with the residents of that neighborhood. I'm sure everyone will be bending over backwards to help out the next time there's a violent crime to solve.

Guy Montag|12.29.06 @ 12:20PM|#

From what I remember from business and other law classes, the narcotics, alcohol and ammunition/weapons industries, at all levels are somehow not covered by the 4th Amendment requirement of a warrant.

Perhaps it was an oversimplification when presented, but that is one of the things I remembered as a reason not to go into those industries for my livelihood.

|12.29.06 @ 12:34PM|#

From what I remember from business and other law classes, the narcotics, alcohol and ammunition/weapons industries, at all levels are somehow not covered by the 4th Amendment requirement of a warrant.

Well, I mean nothing is covered by the 4th amendment anymore... the constitution is mostly ceremonial.

However, there is nothing in the Constitution that could be remotely construted to imply that these things aren't covered by the 4th amendment... it is just that it is bad form to outright say "fuck the constitution", people still feel the need to give some extremly convoluted arguement why blatently violated the letter of the constitution is somehow compatible with the "spirit" of the constitution.

|12.29.06 @ 12:36PM|#

Joe: Who cares about violent crime? There's drug use to be stopped! And besides, most of those folks are kinda brown colored. And, well, you know...

|12.29.06 @ 1:02PM|#

Don't they even teach the Constitution in LAW SCHOOL any more? How can lawyers and judges not comprehend that fishing expeditions of this sort are wrong?

I forget- which comes first: "I was only following orders" or "The end justifies the means"?

Guy Montag|12.29.06 @ 1:02PM|#

Rex Rhino,

It was something to the effect of you have little or no expectation of privacy in a heavily regulated industry.

I am not swearing by this, my professors were quite good, I am just going by my bad memory about areas I have had little experience and a bit of book learnin'.

|12.29.06 @ 1:19PM|#

Good luck to the next beat cop who actually tries to establish a positive relationship with the residents of that neighborhood. I'm sure everyone will be bending over backwards to help out the next time there's a violent crime to solve.

I would like to hear more fairy stories about the police.

Rhywun|12.29.06 @ 1:28PM|#

joe,

The residents of Buffalo (well, certain residents) already had good reason not to trust the cops. This is just another drop in the bucket.

I lived in Buffalo for eight years and watching it decline even further is rather sad. All the people in power keep blaming "poverty" for the city's problems, like poverty is something that just strikes out of nowhere by surprise. Yeah, the city is relatively poor, but that's the least of it's problems. The out-of-control crime is a rather larger problem. So they come up with shit like this to make it look like they're doing something about it. The evaporation of the city's tax base--mostly to the suburbs which are now starting a long, slow decline themselves--is a rather big problem, too. And not least, there's the race problem. Never have I seen a more racially divided city. It's not just "white" areas and "black" areas--that's every city. It's more that mistrust and even hatred are just accepted as normal behavior. I regularly encountered the vilest racism coming out of nowhere from people's lips I least expected to hear it from. Living in NYC is like being in a big happy melting pot in comparison.

|12.29.06 @ 1:35PM|#

Monty Python (If that is your real name),

Come to Massachusetts. Lowell, in particular. It's unusual to have a police department that works like that, but not unheard of.

Rhwuyn,

I don't doubt it. Stunts like this don't arise spontaneously, without a pre-existing mindset among the police. I'm sure they've given plenty of reasons to the locals to distrust them.

On your other point, widespread urban poverty is almost always the result of disinvestment. Buffalo used to have lots of industrial enterprises spending money there, so the population grew. Then they moved elsewhere, so there were fewer jobs to go around, less investment in construction and maintenance, and less money for public services.

The other pathologies you mention are either caused by this lack of capital, or exacerbated by it.

|12.29.06 @ 1:49PM|#

RE: OPERATION CLEAN SWEEP in Buffalo.

Rhywun has a point about central/western New York. The crumbling economic infrastructure of the entire Erie Canal/Great Lakes region continues unabated.

The dearth of opportunity has been compounded by the out-flow of educated, eager gen X and Y workers.

The state of New York has saddled its communities with outrageous mandates (property tax relief, medicaid, and sales taxes), while doing precious little to help the situation except by expanding the state workforce.

On the ground, overstaffed and over-armed police forces are finding that the communities they police are shrinking. In classic "state-worker" fashion, the police leaders become creative in finding ways to put themselves in the paper and ultimately to justify their existence to themselves and their supporters in Albany.

Result: The disgusting pig that is NY bureacracy is feasting on one of the few communities not flooding out of the state: upstate urban poor.
And, of course they are mostly black. The focus placed on these communites by the WoD exacerbates tensions (already simmering due to economic stress) between black and non-black communities

The state-fed gulls are swooping in, unaware that they are gorging on what might be the one community still willing to make a go of it in western/central NY.

Add to this fucking mess some seriously warped judges and souless prosecutors shitting on the Fourth Amendment...

|12.29.06 @ 1:51PM|#

The article states "federal circuit court ruling," but the linked opinion is a district court ruling. Assuming "circuit" is a typo, that means Ruttenberg has one guaranteed appeal of this decision, should he choose to do so.

Happy New Year to All. -T

VM|12.29.06 @ 1:56PM|#

Hey Python - head up to Lincoln Square neighborhood on the north side of Chicago. There's a beat cop who walks there - he's liked and is a very friendly fellow. Knows the dogs and kids names, etc. You know, the cops in Hunting Valley, Ohio were really nice, too.

Or are your fairy stories not involving law enforcement officials but rather bending over? hmmmmm.

The world wonders.

|12.29.06 @ 3:55PM|#

"Don't they even teach the Constitution in LAW SCHOOL any more? How can lawyers and judges not comprehend that fishing expeditions of this sort are wrong?"

well, some of them do - and they're working for the nyclu.

|12.29.06 @ 4:03PM|#

i should've added a smiley face or something. it was supposed to be good natured but now that i read it - it sounds kinda pissy. i'm having a hard time conveying my intent today. stupid internets.

Thomas Paine\'s Goiter|12.29.06 @ 4:45PM|#

What Buffalo really needs is an oppressive police force. THAT will encourage people to stay in the area.

|12.30.06 @ 10:22AM|#

What Baghdad really needs is a more oppressive security force. THAT will encourage people to stay in the area.

|12.31.06 @ 4:47AM|#

virginia is a scary place. hope everyone remembers the christmas-time raid on some bars in herndon/reston a few years ago, where they arrested santa claus, among others.

cops are terrorists. nothing more.

Kelley|12.31.06 @ 10:05AM|#

Peter, you are absolutly correct. Police in the USA are using terror (deliberately instilling fear or anxiety) to manipulate, monitor and control communities. Here's one example of how it's done, daily, in thousands of communities. It starts with a checkpoint, an unreasonable search, that violates our Constitution and the question, "Where are you going" which, asked by police in the absence of an investigation of a crime, also violates our Constitution.

http://www.thenewspaper.com/news/15/1522.asp

The police are out of control because they demand complete control.

alchemism|12.31.06 @ 11:56AM|#

"I would like to hear more fairy tales about the police."

I wonder if the person who wrote this about beat cops ever lived, or closely observed, any environment in which beat cops would have been deployed. I'm guessing they are speaking from ideology and not experience...

Dave|12.31.06 @ 12:54PM|#

you didn't notice them take a few people with them who "disappeared"