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In Camara v. Mun. Court of City and County of San Francisco, 387 U.S. 523 (1967), the United States Supreme Court held that administrative inspections are significant intrusions on Fourth Amendment rights for which warrants generally are required and that probable cause exists in this context, “[i]f reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling.”(387 U.S. at 538)
The Supreme Court also held in See v. City of Seattle, 387 U.S. 541(1967), that the decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement officer in the field.” (387 U.S. at 545)
Because the three fire officers in the EMS case secured a warrant based on their authority under a Cleveland ordinance, the issue on appeal was whether the “annual interior inspection plan” was derived from neutral sources. The appellate court then reviewed the law relating to neutral inspection plans.
In Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), the United States Supreme Court established that administrative probable cause requires a neutral administrative legislation plan. That decision was reiterated by the Sixth Circuit Court of Appeals in Trinity Indus., Inc. v. Occupational Safety and Health Review Comm’n, 16 F.3d 1455 (6th Cir. 1994), in which that court held
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In Barlow’s, the Supreme Court held that warrants are required for administrative inspections under the [Occupational Safety and Health] Act . . . the Court also stated that probable cause justifying the issuance of a warrant for administrative purposes may be based either on ‘specific evidence of an existing violation’ or ‘on a showing that’ reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to a particular [establishment]”. Id. At 320 . . . expounding on the second basis, the Court noted that a ‘warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources . . . would protect an employer’s Fourth Amendment rights.’. . . Id. at 321. Because administrative and legislative guidelines insure that employers selected for inspection pursuant to neutral administrative plans have not been chosen simply for the purpose of harassment, courts have held that administrative plan searches may properly extend to the entire work place. Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1068 (11th Cir. 1982). A permissible administrative plan relies on ‘either random selection or selection by relevant statistics that have no individual human component for the reason that searches flowing from these type of plans could not be the product of an agency’s arbitrary decision.’ See Trinity Industrial, 16 F.3d at 1463 (discussing Barlow’s, 436 U.S. at 323), quoted in Engineering & Manufacturer’s, supra at 23. |
EMS argued that, although a plan to search commercial buildings annually may satisfy Barlow’s neutrality requirement by rendering the “whom to search and how often to search” nondiscretionary, the evidence established that the CFD inspected a small fraction of buildings annually and, in reality, the captain and several others selected the buildings to be inspected without neutral selection criteria.
The Court of Appeals agreed with EMS’s position. In reviewing the evidence, the Court of Appeals noted that the evidence submitted to the trial court demonstrated that, although annual inspections are a goal of the fire department, the CFD actually inspected only a fraction of the commercial establishments in Cleveland annually and that individuals have input into the choice of the buildings to be inspected—i.e., that the fire department’s administrative plan for annual inspections has human input and components that are not neutral. As a result, the appellate court reversed the district court’s dismissal of the claims against the three fire officers.
With the claims now reinstated against them, the three officers argued that they were entitled to qualified immunity. In 42 U.S.C. Section 1983 actions, an officer ordinarily receives qualified immunity if he relies on a judicially secured warrant. When the facts are not in dispute, a court can decide whether an officer is entitled to qualified immunity as a matter of law. In the EMS case, the facts pertinent to probable cause and qualified immunity were in dispute. The fire officers maintained that the affidavit accurately stated that Ashton sought to inspect EMS as part of the fire department’s “annual interior inspection plan” while EMS maintained there was no such plan and that, instead, the department inspected only a fraction of the commercial establishments in Cleveland annually, various fire officials had substantial input into what buildings actually were inspected, and there was no written criteria governing the selection of buildings inspected. EMS also maintained that “to the extent [Ashton’s affidavit] intended to convey that the fire department had a bona fide annual inspection plan that was selection neutral because all of the buildings were regularly and systematically inspected on a yearly basis, Ashton’s reference to ‘annual inspections’ was knowingly or recklessly false.” The appellate court noted that because disputed factual issues underlying the probable cause were present in the case, the fire officials were not entitled to summary judgment on qualified immunity grounds either. The appellate court then remanded the case to the trial court to resolve the factual dispute.
Fire inspectors across the United States inspect hundreds of thousands of buildings annually. For the most part, fire inspectors are granted access to buildings and property under the authority of state or local laws. Rarely are fire inspectors denied access by the building owner or occupant. However, when an inspector is denied access to property, obtaining an administrative search warrant must be done carefully to avoid a claim for a civil rights violation.
Engineering & Manufacturing Services, LLC v. Ashton and the other federal court cases preceding it make it clear that, before an administrative search warrant is obtained, in the absence of a specific fire code violation, fire departments must have in place a systematic, neutral selection process for inspections. The process may rely on a random selection basis. These processes may include drawing names out of a hat, conducting inspections at every fifth business on a list, using computer-generated lists of building occupancies, using lists of businesses rotated on an annual basis, conducting inspections by type of business, or using statistics (i.e., the number of fire alarms received from a business). Once a plan is in place, the fire department must be able to show that it follows the plan on a regular and routine basis. Although the City of Cleveland argued that it had such a plan, there remained a question as to whether or not the city actually followed the plan; therefore, the issue had to be resolved by the trial court.
Inspections and preplanning of businesses are important to protect the lives of firefighters, building owners, and occupants. Nonetheless, fire inspectors and fire officials must be careful not to subject themselves to personal liability by conducting searches that violate an owner/occupant’s clearly established rights under the Fourth and Fourteenth Amendments of the United States Constitution; using neutral inspection plans is an easy way to do just that.
ENDNOTE
1. Ordinance 381.04 provides in pertinent part: “The fire chief or his authorized representatives upon presentation of proper credentials, may enter any building or premises at all reasonable hours or at such times as may be necessary in an existing emergency to examine and inspect for hazardous or dangerous conditions . . . and for the maintenance of fire protection equipment. No person shall prevent, obstruct or delay any inspection or the performance of any lawful duty of a fireman acting within his official capacity.”
DAVID “CHIP” COMSTOCK JR. is a 32-year fire service veteran and chief of the Western Reserve Joint Fire District in Poland, Ohio. He is a chief fire officer designee and lectures and writes on fire service topics relating to chief and company officer operations, liability, and personnel issues. Comstock is also an attorney in the firm of Comstock, Springer & Wilson Co., L.P.A. in Youngstown, Ohio.
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