Fifth Circuit: No SWAT Teams for Regulatory Searches

It's a "Well gee, you'd hope so" sort of victory, but the U.S. Court of Appeals for the Fifth Circuit has ruled that using a SWAT team to conduct an administrative or regulatory search is a violation of the Fourth Amendment.

The case stems from what was clearly a drug raid conducted on a bar in Louisiana by the Rapides Parrish Sheriff's Department. But the raid was conducted under the auspices of an alcohol inspection, which allowed the department to get around the need for a criminal search warrant.

The Fifth Circuit ruled such a raid violates the Fourth Amendment, and is allowing a civil rights suit against the officers involved to go forward. From the opinion:

Taking plaintiffs' factual allegations as true, defendants did not enter Club Retro as would a typical patron; instead, they chose to project official authority by entering with weapons drawn in a S.W.A.T. team raid. They lacked any particularized suspicion or probable cause when they subsequently searched Club Retro, its attic, and the separate apartment and seized and searched all of its patrons and employees. Thus, defendants' entry and search was not a reasonable acceptance of Club Retro's invitation to the public. Any other conclusion would be an invitation for S.W.A.T. team raids by law enforcement officers of any business that is open to the public and would severely undermine the Fourth Amendment protections afforded to owners of commercial premises.

We are likewise not convinced by defendants' second argument that they conducted a permissible administrative inspection. Although Louisiana statutes and Rapides Parish ordinances authorizing administrative inspections may have provided justification for an entry and inspection of Club Retro, no such law permits the scope and manner of the raid that plaintiffs allege occurred here…

Administrative inspections, by their very nature, require more limited, less intrusive conduct than is alleged to have occurred here. We thus conclude that defendants' S.W.A.T. team entries and extensive searches, as described in the amended complaint, unreasonably exceeded the scope of Louisiana and Rapides Parish administrative inspection laws. Any other conclusion would allow the administrative inspection exception to swallow the Fourth Amendment's warrant requirement for searches of private property.

The court also cited a similar opinion from the 11th Circuit:

In Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995), the Eleventh Circuit relied on existing Supreme Court precedent to reject qualified immunity as a defense for officers who conducted two raids of a nightclub that were comparable in relevant respects to the raid here. There, a S.W.A.T. team of thirty to forty officers, wearing ski masks, swarmed a club after receiving a signal from an undercover officer who had probable cause to arrest one patron for an illegal drug transaction. Id. at 993. The officers pointed their weapons at many of the club's patrons and employees; prohibited the owners, employees, and patrons from moving or leaving; searched all individuals; refused patrons' and employees' requests to use the restrooms; searched the club, its cash registers, and door receipts; and maintained control of the premises and persons for between one and one and one-half hours. Id. The court concluded that the officers could point to "no authority that even suggests that the search and seizure of one suspect in a public place can be bootstrapped into probable cause for a broad-based search of the business establishment and its patrons."

For a few years now, I've been covering the ongoing saga of David Ruttenberg, a former pool hall owner in Virginia whose business was raided by a massive police force in 2004. The mix of SWAT, undercover, and uniformed officers stormed Ruttenberg's bar on ladies' night. Like the cases above, the search on Ruttenberg's bar was also clearly a criminal search disguised as an alcohol inspection, though in Ruttenberg's case, it was really only one of numerous violations of his civil rights by the police and political establishment in Manassas Park, Virginia. The police had tried to obtain a search warrant against Ruttenberg for the 2004 raid, but couldn't convince a judge they had probable cause he'd committed a crime. So the merely brought along some representatives from the Virginia Alcohol Beverage Control, and called it an inspection.

So far, Ruttenberg hasn't had much luck in his own federal civil rights suit. His case was rejected outright the first time he appeared in federal court. Last July, the U.S. Court of Appeals for the Fourth Circuit gave Ruttenberg a small glimmer of hope, affirming the lower court's dismissal of every claim, save for one—that the use of SWAT tactics to enforce a regulatory inspection was a violation of the Fourth Amendment. Last month, the same circuit court judge once again threw out that claim, too.

But Ruttenberg is appealing, and given how the similar the facts are to his own case, one would think this latest ruling from the Fifth Circuit could only help his cause. If it doesn't, the split between the Fifth Circuit and the Fourth and 11th Circuits would seem to make the case ripe for the Supreme Court.

It's pretty remarkable that we're even discussing this. We're talking about using SWAT teams to conduct regulatory inspections on businesses. That there would even be a debate shows just how tolerant we've become of the government using this sort of force.

Here's surveillance video of the raid on Ruttenberg's bar. Keep in mind, this was done other the auspices of an alcohol inspection. And a federal judge has now twice ruled that he sees nothing excessive about it.