By DAVID “CHIP” COMSTOCK JR.
Engineering & Manufacturing Services, LLC (EMS) is an aftermarket sheet metal manufacturer that occupies a large warehouse building in Cleveland, Ohio. The City of Cleveland has a codified ordinance that provides the right of entry to the fire chief or his authorized representative during reasonable hours to inspect structures for hazardous conditions. Pursuant to this ordinance, Cleveland Fire Department (CFD) Battalion Chief Chester Ashton, along with CFD firefighters, went to the EMS building to conduct an annual interior inspection of the premises to determine if there were any hazardous conditions present as well as to preplan the large industrial building. The firefighters were denied access to the premises by the owner, Alexander Erdey.
After the firefighters were denied access, the city applied for a search warrant. Ashton submitted an affidavit in support of the warrant. In his affidavit, he noted that he was the battalion chief located closest to the EMS building and would be responsible for fire suppression at the building if a fire were to occur there. He outlined the provisions of the Cleveland-codified ordinance giving the right of entry to the fire chief or his authorized representatives and noted that, as part of his duties, he conducted annual inspections of industrial sites to “get to know the property and to make certain there were no hazardous or dangerous conditions inside that would pose a threat to firefighters in the event of a fire.” Ashton noted that he had attempted to inspect the premises on two occasions and had been denied access by the owner. He also opined, in his affidavit, that, based on his experience and these facts, it was likely that the conditions on the interior of the EMS building were in violation of Cleveland’s fire code and are or may become hazardous to the public health, safety, or welfare. A search warrant was issued and, thereafter, CFD members including Ashton, Deputy Fire Marshal John McKenna, and Chief Fire Inspector Douglas Veselsky conducted a wall-to-wall administrative search of the manufacturing plant.
Thereafter, EMS filed a federal civil rights lawsuit, alleging a violation of 42 U.S.C. Section 1983. Specifically, the manufacturer alleged that the affidavit in support of the search warrant pursuant to which the fire department officers conducted their search in the manufacturer’s plant failed to present facts sufficient to constitute probable cause and contained material and intentional or reckless falsehoods. EMS alleged that the officers’ actions were deliberate and intentional violations of its rights under the Fourth and Fourteenth Amendments.
At the outset of the federal court case, EMS filed a motion for judgment on the issue of liability. In essence, the manufacturer argued that it was entitled to judgment as a matter of law because the application for the search warrant did not set forth specific evidence of an existing fire code violation, and without supporting facts the CFD could not demonstrate administrative probable cause. EMS argued that the warrant application was factually insufficient for the magistrate to find that the inspection was based on reasonable, legislative, or administrative standards—i.e., neutral criteria.
The three defendants opposed EMS’s motion. The district court denied EMS’s motion for judgment, concluding that Ashton’s affidavit provided probable cause for the administrative warrant. The district court recognized Ashton’s qualifications and that the firefighters he supervised would be responsible for responding to any fires occurring at EMS. The affidavit included information relating to the Cleveland-codified ordinance, and the affidavit specifically mentioned the CFD’s annual inspections of industrial sites where firefighters were to become familiar with the property and ensure that no hazardous or dangerous conditions existed that would pose a threat to firefighters in the event of a fire. In conclusion, the district court wrote
|Considering the totality of the circumstances, therefore, probable cause for the administrative search warrant existed:
After EMS’s motion for judgment was denied by the district court, the three fire officers filed their own motion for summary judgment asserting that, because EMS’s complaint raised no issue other than the validity of the warrant and because the district court had ruled the warrant was supported by probable cause, they were entitled to judgment as a matter of law. EMS then opposed this motion, arguing that the warrant was not based on administrative probable cause (the same argument raised in its own motion), that the evidence established that the selection of buildings to be inspected and decisions on how often the buildings were to be inspected were left to the discretion of the fire department officials, that the search-warrant application failed to include a copy of a “neutral” inspection plan, and that the defendants failed to show how the EMS search met the plan’s neutral selection criteria.
The three defendants replied, arguing that Cleveland’s inspection plan was constitutional and that EMS was selected for an annual inspection pursuant to a neutral administrative plan. The defendants argued that Captain Thomas Otto sent monthly inspection sheets to the battalions for buildings with water-based systems and that EMS appeared on the battalion list in 2006, 2007, and 2008. They further argued that Otto maintained a list of buildings to be inspected and that
|[T]he goal is that by the end of the year, each building utilizing a water-based fire suppression system will have been inspected. Each year, every building on the water-based list [such as plaintiffs] is selected for inspection. Even if this Court should determine that the City’s current plan give [sic] fire inspectors too much discretion[,] the solution . . . is to require a warrant.|
Thereafter, the defendants also submitted, for the first time, an affidavit of Fire Marshal Mark Scott, which stated that, in the year the EMS warrant was obtained, the Fire Division conducted inspections at 8,449 of the 15,515 addresses on file, and that the Division “does not claim to inspect every address, every year—but that is the goal we strive to achieve.”
This additional reply was based on a Fire Division general order that had been issued seven years earlier. The order stated, in relevant part:
“Due to an increasing number of building inspections required by Federal, State and local legislation, the Cleveland Fire Prevention Bureau cannot inspect all existing buildings. All fire companies, therefore, shall assume the responsibility of building inspections and refer unabated violations to the Fire Prevention Bureau for follow-up.
Note: It is the goal of the division of fire that all facilities with water-based fire protection systems be inspected annually.1
Thereafter, the district court ruled on the fire officers’ motion. The court noted that it previously denied EMS’s motion and had held that the company’s constitutional rights under the Fourth and Fourteenth Amendments were not violated because probable cause for the warrant existed. Because the plaintiff’s complaint pled no claim other than for the validity of the administrative search warrant and because the court previously held there were no constitutional violations in the issuance and the execution of the search warrant, the federal district court ruled in the fire officers’ favor. EMS thereafter appealed the dismissal to the United States Court of Appeals for the Sixth Circuit.
In reviewing the dismissal of the case, the Court of Appeals noted that the district court’s opinion dismissing the case against the fire officers did not discuss the probable cause issue; it merely noted its initial determination defining probable cause on EMS’s motion for judgment. That ruling rested on the court’s two conclusions that “a valid city ordinance authorized [the] administrative search” and that “annual inspections of industrial premises for fire safety concerns are reasonable and neutral.”
The appellate court began its analysis by noting that statutes such as Cleveland’s ordinance, on which the district court partly relied in concluding that probable cause was established, have been held to be unconstitutional by the United States Supreme Court unless construed to require a search warrant supported by administrative probable cause.
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