Privacy

Fifth Circuit: No SWAT Teams for Regulatory Searches

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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.

NEXT: Disturbing the Peace

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  1. 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.

    Actually, regulatory inspections have often been one of the first ways that government power has been expanded. The “administrative warrant” has long been abused, and essentially warrantless searches go back to the need to enforce suddenly much higher corporate taxes.

  2. So, if, in the case of Rack and Roll, the judges “logic” were to hold (that it’s ok to use swat teams for regulation inspections) – lets run with that one and expand it to the personal sphere….

    I can see teams of EPA swat thugs breaking into your garage to ‘inspect’ the emmissions controls on your car, and, oh by the way, terrorizing your family in the house (after all, we have to secure the scene), shooting the family dog (and cat for good measure – after all, those claws can SCRATCH) and, if you happen to look at one of the thugs the wrong way, you’ll be ‘accidently’ shot.

    Flipping amazing that the clear injustice Ruttenberg has undergone is STILL underway.

  3. I’ve been following Radley’s coverage of Rack n’ Roll Billiards. Pure naked oppression and racism. If you’re not familiar with it, I urge you to click the link. Fair warning: Prepare to be outraged and depressed.

  4. Next they’ll be ruling that torture is illegal.

  5. Did some SWAT team hustle off with the video? Where’d it go?

  6. Do you have tags on those matresses motherfucker!? Do you have the correct fucking tags!? Well, DO YOU?? LET’S SEE SOME ID! (reaches for wallet) GUN! GUN! GET DOWN! GET DOWN! (shots ring out, no apologies issued.)

  7. And a federal judge has now twice ruled that he sees nothing excessive about it.

    I wonder how he would feel if someone made an anonymous tip to the FBI about his residence.

  8. The only thing I can envision after even a causal reading of the Rack & Roll shambles is that there must be motherfucking pirate gold buried under that bar, like in “The Goonies.”

    This is some grade-A disturbing whaleshit.

  9. The thing that bugged me about the Rack-n-Roll raid was the brazen lack of regard for common sense.

    The SWAT team is theoretically there because of the threat of imminent violence. But if that were true, they’d have gone in first, secured the place, and only then allowed the less protected plainclothes and inspectors in. In the video, half the guys are coming in all commando-style, and the other guys are strolling in like Boss-frickin-Hogg.

    The whole thing is so clearly just an episode of dick-waving and intimidation. And how much do you want to bet that some of the SWAT guys were getting overtime for that, too? Even leaving aside the clear attempt to harass Rittenberg, it should be investigated for financial malfeasance and gross waste of taxpayer money.

  10. Oh come on. Those two people playing pool were clearly dangerous and presented a danger. And look at the guys behind the bar. I’d be scared wand want 20 of my friends there as well.

    I’d say I’m shocked that police abuse and courts support the abuse of warrants and warrant exceptions. But I’m not. Police departments are already working their stop procedures around the April Supreme Court decision dealing with contemporaneous searches of vehicles with respect to an arrest. I wouldn’t be amazed if they tried to conduct a search with the people still in the car and at gun point to get around the language and ensure the entire cabin of the car was within the wingspan of the suspect.

    The police have become as adept at getting around the rules as the corporations.

  11. …and essentially warrantless searches go back to the need to enforce suddenly much higher corporate taxes.

    That’s a helluva claim.

  12. which judge?

  13. …and essentially warrantless searches go back to the need to enforce suddenly much higher corporate taxes.

    That’s a helluva claim.

    The sheriff got smart after about 200 years and now just uses all warrants as a general writ of assistance. I’d say that claim isn’t too far outside of what is actually occurring. I would argue that the searches are even more troubling because they aren’t warrantless. That the warrant being stretched abused and the absurdly broad use of good faith exceptions and reasonability have turned damn near every warrant into a free for all writ of assistance. We kinda fought a war over those one time, well at least it helped to piss everyone off.

  14. I counted 26 pigs marching in there with another 3 or 4 outside standing guard. And they were falling over themselves to get inside, with some all dressed up in their battle gear pointing guns at innocent people. Any judge that would not rule this ‘routine inspection’ as excessive should be removed from the bench. The police wonder why many, many people despise and hate them for what they do. Its because they do shit like this. What is our country coming to?

  15. The police wonder why many, many people despise and hate them for what they do. Its because they do shit like this.

    It’s also why the rest of the people love them.

  16. Democratic playbook:

    What abuse? Regulations increase freedom.

  17. The sheriff got smart after about 200 years and now just uses all warrants as a general writ of assistance. I’d say that claim isn’t too far outside of what is actually occurring. I would argue that the searches are even more troubling because they aren’t warrantless. That the warrant being stretched abused and the absurdly broad use of good faith exceptions and reasonability have turned damn near every warrant into a free for all writ of assistance. We kinda fought a war over those one time, well at least it helped to piss everyone off.

    I agree on the general point that warrants have become writs of assistance in all but name. What I was reacting to is the notion that this mutation occurred because of a raise in the corporate tax rate. That *is* fairly unlikely, and unbelievable without direct corroboration.

  18. uses all warrants as a general writ of assistance.

    You’re conflating a general warrant with a writ of assistance. A general warrant authorizes an officer to perpetrate a fishing expedition search. A writ of assistance lets him draft civilians to help him do it.

    -jcr

  19. I want to know how long before they’re calling out SWAT teams to get kittens down from trees.

  20. Wait, so if the cheese shop I go to sells unpasteurized camembert, I could be staring up the tube of an m-3?

  21. So, wasn’t the pretext for the Waco search a licensing/fee issue? Is it an actual CRIME, for instance, to possess machine guns without having the proper license or paying the associated fees? If so, perhaps I ought to be more polite to the library police.

    Seriously, what was the criminal-law basis for the Waco warrant, if anyone remembers accurately?

  22. Oops. A bit hasty on the ENTER key. Above, I had intended to say, “If so, perhaps I ought to be more polite to the library police, as one never knows when certain classes of books might be reclassified as assault weaponry.”

  23. With many new announcement about the wizard of oz movies in the news, you might want to consider starting to obtain Wizard of Oz book series either as collectible or investment at RareOzBooks.com.

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