Regulating Around the Fourth Amendment

By Radley Balko
Reason
Jan. 30, 2007

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.