Warrants

Tenants, Owners Resist Mandatory Rental Inspections in New Minnesota Fight

Can city officials demand entrance to a home with no evidence of violations?

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Jason and Jacki Wiebesick
Institute for Justice

The Institute for Justice popped onto my radar for the very first time several years ago when I was researching the issue of mandatory municipal rental apartment inspections. My city (the tiny desert town of Barstow, California) was proposing the creation of such a program. I bristled at what I saw as an obvious Fourth Amendment violation, and when trying to find examples, I happened across the Institute for Justice's lawsuit against Red Wing, Minnesota, in 2006.

Municipalities across the country have instituted these inspection regimes, enforced by administrative warrants, which do not require inspectors to have proof of criminal violations in order to demand entrance into somebody's home. While they are sold to communities as public safety measures to fight slums and dangerous housing, they are used to enforce a whole host of arbitrary city codes that have little if anything to do with public safety, and they are violations of residents' privacy. Police have also been known to abuse regulatory inspection processes to conduct searches without getting warrants.

The IJ fought Red Wing's rental inspections on the basis that the law was unconstitutional because it did not require any level of suspicion for a city official to demand entrance into a rental property (the Reason Foundation submitted an amicus brief). In a complicated, technical ruling in 2013, Minnesota's top court dodged the question of constitutionality because the rental inspection law allowed a judge to demand evidence before signing off on an administrative warrant, should the city need to pursue one.

But now IJ is back in Minnesota in another city trying to push the argument even further. In Golden Valley, a suburb of Minneapolis and headquarters for General Mills, a couple is resisting the city's demands to inspect a rental unit in order to let people live there. The tenants also say that don't need to be inspected. Here's what happened next, according to IJ:

Without telling the Wiebesicks or their tenants, the city took the matter to court; it sought an administrative search warrant from Hennepin County Judge Susan Robiner. The city argued that an administrative warrant, unlike a warrant for a criminal investigation, did not require providing any evidence that anything was wrong with the home.

Judge Robiner disagreed and denied the city's request. Citing a previous case litigated by the Institute for Justice, Judge Robiner wrote that without some individualized suspicion of a housing code violation, the court could not order a warrant. She wrote:

"Both the United States Constitution and the Minnesota Constitution provide that persons shall be free from unreasonable searches and seizures and impose a warrant requirement supported by probable cause… [T]he privacy interest in one's home is well-recognized as of greatest constitutional significance."

So a judge actually ruled their rental inspection system unconstitutional. The city is appealing the case, so IJ has stepped forward to represent the couple again. IJ Senior Attorney Anthony Sanders tells me they're hoping this case will force the state's Supreme Court to have to deal with the constitutional issues directly. Because the city did attempt to pursue an administrative warrant without any evidence of legal violations, IJ can attempt to make the case that law itself is unconstitutional as it is applied.

Read more about the case here.

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  1. Sounds like one of those “for your own good” deals.

    “We’re just inspecting this apartment to make sure your land lord isn’t letting you live in an unsafe space. But we’ll also be happy to arrest you if we see some weed or your children are inadequately supervised, or if you toilet paper is hung the wrong way.”

    1. or if you toilet paper is hung the wrong way.”

      Death penalty.

      1. I did read the headline as “Rectal Inspections,” so rental inspections really sounds rather benign.

  2. First to inspect!

      1. Two minutes to refresh and you couldn’t be bothered. Amateur hour.

      2. Take that!

        And I didn’t even comment here until I skimmed the article above.

  3. Ha! Didn’t I say so in the Koch thread?

    Their support of 4th Amendment rights back in 1980 was cited as an example of their being liberal/progressive.

    I replied that progs could spin this as shielding environmental violations from inspectors.

    Now same here – the 4th Amendment is being invoked by sinister landlord interests to block inspections required by the public safety! /sarc

  4. This could seriously upend inspection routines for all sorts of businesses if it keeps winning court cases. The landlords are a public accommodation, so if you can’t inspect them without probable cause what right do you have to inspect the restaurant down the road’s kitchen?

    1. I’m not sure that rental housing counts as public accommodation. Would have to ask a lawyer. But there are big differences between a rental property and a business that is open to the public. Landlords get to be a lot more selective on who they will rent to. I doubt a judge would have a hard time distinguishing the two scenarios legally.

      Would be nice though. Administrative inspections do get used as excuses to search businesses for criminal activity (there was a particularly good example of a bar that Balko covered years ago).

      1. I don’t believe housing is considered a public accommodation even under state laws (it’s definitely not under federal laws). There may be similar antidiscrimination laws, but they’re always approached separately.

        1. Not sure of the new public accommodation bill being pushed at the federal level by the gay rightsers includes rental properties. It does have a massive expansion of what counts as a PA, so it might.

          1. It doesn’t include housing under public accommodations, but it does also amend federal housing discrimination laws to cover them there.

  5. Is it possible for someone to look more like they came from Minnesota than those 2?

    1. Put another 50 pounds on each of them, maybe.

      1. No, that would push them into Wisconsin.

  6. Both the United States Constitution and the Minnesota Constitution provide that persons shall be free from unreasonable searches and seizures and impose a warrant requirement supported by probable cause? [T]he privacy interest in one’s home is well-recognized as of greatest constitutional significance.”

    Dead white slave owners.

    *drops microphone*

  7. I’ve long had a better idea for warrants: let anybody who has filed a formal complaint issue and execute their own warrants, BUT they have to describe what and where they expect to find things, and are appealable on those grounds before execution. After execution, if the execution itself is found incompatible with the warrant (they searched the wrong place), or if they lose the case, then the target of the warrant gets to turn the tables and repeat the warrant right back at them. Most such turnabouts would be settled for cash in lieu of reverse warrant execution, but that’s up to the parties involved.

    It puts warrant accountability right where it belongs, in the authors and/or executors. No immunity of any sort. No “nice try” or “good intentions” exceptions. It would make people think real hard about writing and executing warrants.

  8. I remember when I used to live in Boston proper, rent prices were so high we used to cram 7 people into a 4 person unit to keep rent affordable.

    Funny thing is, the landlord didn’t mind. He probably realized he wouldn’t be able to charge as much as he did if only 4 people were allowed to live there

  9. I am glad to see a lawsuit about this sort of thing. I remember being told that the city was going to inspect my apartment when I lived in one in Cedar Rapids, IA some years back. It was incredibly annoying. It seems that the apartment is between me and the landlord. If the city wants to inspect them, it should be between rentals. If I was ever in that situation again, I would definitely look to the IJ for a little legal help.

  10. Scott dear boy, no one, and I mean NO ONE, ever admits to living in Barstow. Ever. Unless maybe you lived in Bakersfield.

    1. At least they have great outlet shopping in Barstow 🙂

  11. Good for the judge, freedom wins this round. But as it relates to homes vs apartments, there’s also a lot of misconception around what home inspectors can or cannot do: http://tophatinspection.com/ru…..ld-not-do/

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