Brief Amici Curiae — Frank v. Maryland

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SUPREME COURT. U, x aes | FEB 13

BCE a | nwes i. seowninc, crt

SUPREME COURT OF THE UNITED STATES ps : ae

OCTOBER TERM, 1958 Se

' No. 278 —

08

AARON D. FRANK, - a hae

| 7 A ¢ »

7 Betas

. STATE OF MARYLAND, ;

: Ri tie Reet Appellee.

Beek seca Se

ON APPEAL FROM THE CRIMINAL COURT OF BALTIMORE

_ MUNICIPAL: LAW OFFICERS

_ Forslist of counsel,

e: .

COUNSEL -

Jor W. Awonisor,

City Attorney,

Chattanooga, Tennessee.

Roazr Anwzsenon,

City. Attorney, .

Los Angeles, California |

Jc oun C. Banks, —

City Attorney,

' Denver, Colorado. |

Aexanper G. Browy,

City Attorney,

Portland, Oregon. _

NatHaniet H. Gotpstick,

Corporation Counsel,

Detroit, Michigan. —

a Wiinetu N. Gurrman,

rity Counsel, -

Passaic, New Jersey.

CLauDE v.. Jonze,

. City Attorney,

Durham, North Carolina..

Raten 8. LocuEr,

— Director of a)

gt Cleveland, Ohio.

WALTER J. Marrison,

City Attorney,

Milwaukee, Wisconsin.

Joux’C. MgLantrny,

Corporation Counsel,

Chicago, Iiinois. -

Bagyerr I. Sur, —

Corporation Counsel, .

Portland, Maine.

Cranes H. TRNNey,

Corporation Counsel,

- - New York, New York.

Cuantes S. Ruywr,

. ‘Brice W. Rayne,

| S. Wuire Ruyyzg, Jr.,

839 Seventeenth Street, N.W.,

Washington 6, D.C.

i

.INDEX i

Suspsect Inpex —-

, Meee Net ene : Page

EE I OIG 8 a bee eed

Sunmary of Argument . Pn pave et iate ets tee cee

Argument: $:

I. Fourth : Amendment Y ro hi ibits Only |

Searches Determined To Be Unreasonable .

After Consideration of All Interests | 3 :

II. Public Interest in Preservation of Health 7

Inspections . __- oo

III. Interest of Individual Houscholder i in Ab-

solute Privacy . er

IV. Balancing of Interests ? 10

Conclusion ewes BRIN Joe aan te ee a Up oes hea oe

'* "TABLE OF, AUTHORITIES

Cases : : : ar,

American Communications Asso. v. Douds, 339. |

i es ote eS Sree, 3

Berman v. Parker, 348 U. s. Peeing: oe ae

California Reduction Co..v. Sanitary Reduction ;

Works, 199.U.S. 306... .... ot ie ae

District of Columbia v. Little, 399 U.S. 1 sieane:

Jacobson v. Massachusetts, 197 U.S.11. a 11

North American. Cold Storage Co. v. Chicago,

ae Si eT oe Se

* Reynolds v. United States, 98 U.S.145. | - st

Schenck. v. United: yreten, 249 U.S. 47. ce

one

: Coneilineak Provisions, Statutes & Court Rules:

; U. S. Consr:, AMEND. IV pore eee ea 11

BaLTIMORE, Mp., Gen. Bupc. Conk, art. 5, eh. 12 5

Ba.timore, Mp., Heatru Cope, art. 12, ee 114-

| Ree Rey Lae oe . ae

ou. 8. Sur. ‘Cr. pean 42(4). iy, pan bas Eble

at fag of a

Miscellaneous:

Page

Amoebic Ricedeteiia y m ‘Chicago, m4 hn. J. Pus.

Heattu 756 (1934) |

Boston, Mass. Heattn Dept. Ann. id 1956

CLEVELAND, On10 Heattu Dept. Ann. Rer. 1956.

D. C. Derr. Licenses & Inspections Rer., ‘*Hous-

- ing Code Enforcement’’ (Dec. 24, 1958). . 8

Dept. Comm. Bur. Census Rep., “Summary i

Governmental Finances’’ (Aug. 24,1958) =s——s«éOG

: Detrort, Micu. Heauru Derr. Ann. Rep. 1955. . 6

Granp Jury PresentMEnt, ‘‘In the Matter of the

. Investigation of the Enforcement of Any and

All Laws Concerning Hazardous and Unsani-

‘tary Conditions in Dwellings, ete.,’’ Kings *

County Couri, N.Y.‘ (Jan. 28, 1953) face .§

Washington Star, Aug. 6, 7, 1949 : | a

@an

r Yi

! IN THE |

SUPREME COURT OF THE UNITED STATES \

No. 278

AARON D. FRANK, ,

‘a : Appellant., .

_ STATE OF MARYLAND, :

: Appellee.

_ON APPEAL FROM THE CRIMINAL COURT OF BALTIMORE

(MARYLAND)

BRIEF AMICI CURIAE OF THE MEMBER MUNICI.

PALITIES OF THE ‘NATIONAL INSTITUTE OF .

MUNICIPAL LAW OFFICERS wa

-?

"Interest of Amici Curiae

~The National Institute of® Municipal Law Officers

(NIMLO) is an organization composed of more than eleven

hundreé municipalities located: in each of the 49 siates, the

_ District of Columbia, and the territories of Hawaii and

Puerto Rico. Each member city acts through its. chief |

~ (1)

2

‘legal officer, boos variously as City Attorney, City Solici-

-tar, Corporation Counsel, Director of. Law,: ete.

This brief is filed pursuant to rule 42(4) of this Court.

The members of NIMLO are political subdivisions of

_ states, and this brief is ‘sponsored by their authorized law

~ officers. ud eee Ai

The issue presented in this case is of vital interest not _

only to the city of Baltimore. but to alt municipalities which

seek to prevent health and fire hazards and exercise other

" necessary police power functions under ordinances pro-

viding for reasonable inspections of private houses. The

issue is also of vital interest to the millions of inhabitants i

‘of those municipalities whose life and health and | property

are protected by such inspections.

The members of NIMLO were represented by brief amici

curiae and also in. oral argument in the only other case —

‘presenting to this Court the issue of the constitutionality .

of municipal health inspection, i.e., Disirict of. Columbia v.

Little, 399 U.S. 1. (constitutional i issue not decided). It-is

because of the collective experience of the NIMLO munici-

palities with the necessity for reasonable inspection ordi-

nances, and their awareness of the danger which is posed

to the health and welfare of their respective communities

by attempts such as this to invalidate those ordinances, that’

this brief amici curiae is filed.

- Summary of Argument

The rights guaranteed. by the Constitution are nat ab-

solute. In the case of the right to privacy under the Fourth

Amendment, only unreasonable, searches are prohibited.

Whether a search is or is not ‘‘unréasonable’’- depends

upon a balancing of all interests for and. against allowing

the search. -In this case, the interest of all the people —

in guarding the public. health and preventing the spread of

3

disease outweighs the interest of the individual : heuse-

holder in being free from the’ ‘slight inconvenience’ caused

by reasonable municipal health inspection. Health ‘inspec-

tions are not unreasonable searches within the meaning of

“the fourth amendment. i | .

1 Fourth Amendment Prohibits Only Searches Determined

| To Be Unreasonable After Consideration of All Interests

The freedoms of the Bill of Rights are not absolute.

They are subject to reasonable limitations in the exercise

’ of the police power of the state. American Communica-

tions Asso. v. Douds, 339 U.S. 382, 398-99. This Court has

said : b. te :

_ We have never held that such freedoms are absolute.

The reason jis plain. As Mr. Chief Justice Hughes put

it, ‘Civil libertiés, as guaranteed by the Constitution,

imply the existence of an organized society maintaining

public order without which liberty itself would be lost

in the excesses of unrestrained abuses.’ Id. at 399.

Moreoyer, the guarantee of individual freedom in the

Fourth mendment i is by its language: specifically qualified.

It is fot an absolute prohibition on searches of houses.

It prohibits only ‘‘umreasonable searches.’’ (Emphasis

added.) | |

As pointed out in appellee ’s brief, Br. p..20, and indeed

in appellant’s brief as well, Br. p. 29, the determination of

whether health inspection under the Baltimore ordinance

was an unreasonable search within the meaning of the

~ Fourth Amendment will depend upon a balancing of inter--

ests between the right of an individual to privacy in his

own. home ‘and the right .of a municipality to guard the

ta

<

health and welfare of all its people through the exercise —

.of its police power. It is to this balancing of interests

that the amici curiae wish to direct their argument. Be-

cause of the collective ¢xperience of the moré than eleven

hundred NIMLO member cities, all over the nation. in fire

prevention and sanitation, the amici curiae feel particular ly

qualified to bring to the attention of this Court. the gravity

and importance of the public interest in the preservation of

‘reasonable inspection ordinances. : :

II. Public Interest in Preservation of Health Inspections

Sanitary inspections cannot be made from a courthouse.

It is not‘a question primarily of the inconvenience involved |

_in procuring a warrant every time there is a complaint as

to unsanitary conditions. The fact is that public health can-

not be protected merely by followi ing up warrantable com-

plaints. The major public health and safety programs in.

this country are grounded on tlie concept that it is through

-_ prevention of conditions which result in health and safety °

hazards, and not in the punishment of violators, that the

public welfare is best protected.

A reversal of the decision of the state court in this case |

_ would destroy the systems of prev entive inspections now

set up all over this country, and would make health officers

mere process servers for the purpose of abating conditions

which have already grown to the stature of public menace.

Effective health and ‘safety administration is not based

‘upon complaints, but is the result of periodic scientific

’ checks by trained inspectors to determine. health and.safety,

/-. conditions. This: is amply illustrated by the results of a,

'. , test surv ey conducted ‘by a grand jury’in New York City

convened to investigate hazardous and unsanitary condi-'.

— tions_ in housing. . Surveyed by an inspection team were:

| fifteen square blocks of housing — in three representative

8

‘ 5

’ areas.of Brooklyn, in which 567 housing division violations

had been previously reported on complaint, The inspec-

tion survey revealed an actual total of 12,445 violations in ~

the test area, many of them classed as ‘““hazardous.’’ More-

_over, other New York City inspections | indicated that this

ratio was not out of line. Granp Jury _PreseNTMENT, ‘*In

the Matter of the Investigation of the Enforcement of Any

~ and All Laws’ Concerning Hazardous and Unsanitary Con-

ditions in Dwellings, ete.,’? Kings any Court, N.Y:, pt.

_ 1, pp.-6-8 (Jan. 28, 1953).

Only 567 violations on file prior to the. test inspection ;

as against 12 445 violations after the test! Can’there be

any doubt of the need for preventive inspections? — |

Interior inspections-of private housing for fire’ hazards

are regularly conducted in Baltimore under article 5, chap-

ter 12 of that city’s: ‘General Building Code. . Similar pro-,

grams of preventive inspection in countless other cities

have drastically reduced fire hazards in this country.

These inspections have been ‘part of a scientific plan to

edugate the householder into. avoiding catastrophe rather )

than confining municipal efforts to extinguishing fires after

~ they have occurred.

There is the:same need for ifispection in connection with

. ' garbage and rodent nests, two of the greatest sources of the

spread of disease in this country. If the health officers of

all the cities of the country are to wait for the complaints

of neighbors and then issue warrants predicated upon thie

information received, the effective work that is bemg done

in preventing epidemics in this country will henceforth be

curbed. For every neighbor wh complains, there are

hundreds who’ are ‘unwilling to become involved in a back-

yard fight to preserve the health of the community, others -

who are phlegmatic to the danger, and still others who ar;

joint offenders. :

oa

§.

\ : ‘ \ 2 : ‘

_ The annual report of-the health department of\the city.

- of Cleveland for the year 1956 shows that in that city 36,081.

The report. of the health department of the city of

~ shows that e the same year 27,268 sanitation inspections

were made in‘that city. In Detroit, according to the annual

report of the department of health, 25,247 housing inspec-

housing sanitation inspections weré made in a ot Ba

tions were madé\in 1955. Municipalities maintain these

oston

Inspection prograins because their people: feel they are |

necessary to protect the general health. |

The municipalities ‘of this nation spend $432,000,000

annyally in’ refuse: collection. and removal. Dept. Comm.

Bur. Census Rep., “Summary of Governmental Finances,”’

p. 30 (Aug. 24,1958). It is\not just the zeal to render a

~ public service that impels cities to maintain these costly

refuse removal systems. It is the recognition of the fact

that the control of garbage is the primary step in the con-

trol of certain very serious diseases. For - -example, the

danger . of typhus, where the infection results from the.

bites of insects borne by rats, is tremendously inereased |

where the garbage. sanitation is not adequately, controlled:

The same danger exists where sanitation officers are not

allowed to inspect dwellings such as appellant’s for rodent

- infestation and other health hazards. Nad RT I

‘ Possible rodent’ infestation in appellant’s house is not

appellant's business alone. Rats do not stay at home, nor

do the disease germs which they spread. Fires ignited by _.

safety hazards which might have been uncovered by mu-

nicipal inspection spread ‘te adjoining houses, and have

been known to level entire city blocks.’ A man’s home

may be his castle, but that castle no longer sits on a hill \.

__ surrounded by a moat. ‘The modern ‘‘castle’’ is connected

to a central water system, a sewage system, a garbage

side.

collection system, and frequently to the houses. « on either .

* The case of the open. garbage can may not be as in-

triguing to students of constitutional law as _a.case involv-

ing freedom of speech and assembly, but . assemblage.

of rodents and germs can have equally faf reaching effect.

A colony of rats is capgble of-increasing at the rate of , ~

six percent per day. Sag per after thirty divisions, {| —

becomes one billion germs\ta formidable armed enemy. \.

This is not fanciful, but realistic. To municipal officers, in

constant touch with health and safety - problems, it is

impossible to shrug off the very real dangers that lurk»

in the everyday problems of sanitation.

The practical administrative obstacles to operating in-

spection systems through warrants cannot be urged too

strongly. It just cannot be done that way. Getting a

“warrant would be possible . only in that portion of cases.

_ where complaints have been received or where a nuisance

situation has reached the point where it can be seen and

smelled from outside the building.. Olfactory health con-

~ trol is no answer to the major health problems of this

country. The violations that smell represent too small a

‘portion of the whole. By the time putrefaction sets in,

very valuable time has been lost and an emergency phase

has begun. The whole. public health program is predicated —

upon the basic/ principle that improper practices must be

correctéd and abated before they reach the stage of glaring —

dangers . : | | ,

‘If health inspection ordinances are invalidated, count-

less cases of defective household plumbing which inspec-

tions would discovery will be permitted ‘to continue un-

corrected. Defective. plumbing may cause back siphonage

of’ sewage and other household wastes into the public

_ water supply. The amoebic dysentery epidemic in Chicago

in 1933, resulting in 100 deaths in over 1 ,000 known cases,

- was caused by just such-“ situation. Amoeb¥ Dysentery

in Chicago, 24 Am. J. Pus. Heauru 756 (1934). Water is

.

:

| “also a: ‘vehicle bon the dreaded diseases of cholera and

typhoid fever.

oe logical extension of the invalidation ‘of health inspec-

“tion ordinances would prevent ‘the effective checking of

electrical work’ for fire- hazards, or of hot air furnaces

to determine whether proper combustion is achieved so

: as to prevent the escape of noxious gases. .It is worth

noting that about two years after. the attempted inspec-

' tion in District of Columbiav.. Little, 339 US. 1, a fire

gutted the home of the respondent and burned to death

her two- -year- -old child. ‘Washington Star, Aug. "6, 1949,

p. A-20, col. 1; Aug. 7, 1949, p. A-7, col. 7. While the cause

- of the fire “was. reported as undetermined, the incident

serves as ‘a grim reminder of the kind oF loss. that can.

frequently be prevented. by. municipal inspection.

Field inspections, also play a vital role in. urban redevel-

“opment and slum clearance. D. C. Derr, Licenses & In-

spections Rep., ‘Housing Code Enforcement’? (Dec. 24,

1958). ° Federal - ‘government statistics show that slums,

—°- whieh: constitute only 20% of. the total residential area of

the av erage American city, produce 35% of all fires, 45%

of major crimes, and 50% of disease.. Id: at 23. In the

landmark case of Berman v. Parker, 348 U.S. 26, 32, this

Court recognized that: . © 1 é Ys

Miserable. and disreputable housing contlitions may _

do more than spread disease and crime and immorality. _

They may also suffocate the “spirit: by reducing the

people. who live there to the status of cattle.” They

may indeed make livi ing an almost intolerable burden.

i. Interest of Individual Mnieibiolde: In Absolute Privacy

“The ‘“réasonableness’ ’ of the search involved in this

ease depends upon a balancing of interests: It has: been

shown that the interest of. the Asi abate a pense

re

ae y

their agents, mahicipalities in exercising police power

throigh health and safety inspegtions is. grave indeed. .

What are the interests of the individual householder in

maintainitg’ an absolute right of privacy : in his" home

against such inspections? ;

‘It should be noted initially that most ‘icissticidins feel

_. their interests lie in’ permitting such inspections,Cand

welcome the periodic visits of:municipal inspectors which ©

they know can uncover hazards the correction of which

may save their lives by stopping fire or disease. Yet.what

of a householder who, like appellant, feels differently?.

What are the dangers to such a householder if inspection

is allowed?

Unlike the householders i in all cases-in ‘this Court where,

searches have been declared unconstitutional, this house-

holder is subject to no criminal prosecution. -The inspecting

- Official is not looking for evidencé of a crime. Under the

Baltimore city code, as under most inspection ordinances, ©

if a health or ‘safety hazard. ie found, the householder is

_ merely notified to correct it and a penalty attaches only

if he fails to comply. Battimorr, Mp., Heatran Cops,

—. §§ 112, 114- 15, R. p. 104. The result of the inspection is’

-not that defendant is convicted of a crime becausé of dis-

i ote evidence, but that an unsafe condition i in his home

rected. |

But what of the nuisance to the houseliolder isinaiad: by

ippabtiiast There is no contention ‘in the. instant case

that the houscholder was harrassed by repeated inspec-

tions, nor that the inspection in question was made at an-

-inconvenient time of the day; Indeed, the ordinance under —

attack required that. the inbpection be made in the day

time, and ‘the particular. inspection under attack was

attempted to be made in’ the -middle ofs the ‘afternoon,

- There i is no conte enttion in ‘the instant case that the esl sil d

——__._.

10 ane Sr £

ing sanitarian had any motive other than the discovery

“~“of a possible, health hazard. This is not the case of the .

knock on the door in the middle of the night, or even of

interference .with the family dinner hour. The “rule of

reasonableness which has been developed in cases passing

3 upon due process of law (and which is specifically incor-

porated in the language of the. Fourth Amendment for-

bidding only unreasonable searches) is always a proteetion

against the capricious: action of government officials. It

caunot be doubted that abuses of the health and safety

inspection ordinances could .be remedied if they should

transpire. ° a

IV. Balancing of Interests

- Whe1i the interests. are. balanced, then, the scales are

grossly uneven. In order to preserve the nebulous private

right of the appellant and a few others like him, this Court

is asked to jeopardize the lives and ‘health of millions of .

city residents. the nation over. One death from fire or

disease originating 1 ina filth strewn cellar should be sufficient

to tip the séales, but in fact thousands of such deaths are

a realistic possibility. ;

It is not to be denied that the fundamental purpose of

‘ the Fourth Amendment was to secure privacy in the home.

However, it must also be remembered that under the police

_ power there. is lawful interference i in many instances with

the liberty of individuals, \heit right to move around and

their right to use their property. Individual freedom must

yield in some cases to the enforcement of reasonable regu-

lations for the public-welfare. The right of privacy in

the home ‘should not give the right to refuse entry to'a

health inspector any more than the right of free, speech

_ gives the right falsely to shout ‘‘fire’’ in a theater, Schenck ~

_¥. Umited — 249°U. S, 47, 52, or the right of . freedom ;

0

‘

ee ata re |

of religion gives the right to offer a human sacrifice, ©

Reynolds v, United States, 98 U.S. 145, 166.

Where public health is at stake, this Court has sanc-

tioned, as against constitutional objection. based .on indi-

vidual rights,*the power of {he government summarily

_ to enter premises.and seize and destroy putrid food, North

American Cold Storage Co. v. Chicago, 211 U.S. 306, and.

the power to provide for compulsory vaccination, Jacobson

v. Massachusetts, 197 U.S. 11. Indeed, in affirming -the

power of a municipality to regulate .refuse removal, this

_ Court in California Reduction Co. v. Sanitary Reduction.

‘Works, 199 U.S. .306 has noted obiter the very issue in-

volved i in this case: | pre

The householder may be compelled to submit even

to an inspection Of his premises, at his own expense,

and forbidden to keep them [garbage and refuse

“A material], or allow them to be kept, in such con-

dition as to create disease. Id. vat: 321-22. (Emphasis

added. + |

Conclusion

No one who loves ‘America and the tnt for which

- America starids wants to see any of the individual rights

guaranteed by the Constitution weakened in any way.- This

brief is not submitted.with a desire to weaken individual

rights, but in an attempt to put our constitutionally guar-

-anteed rights in a proper perspective. It is earnestly sub- |

- mitted that it was-never the intended purpose of-the Fourth

Amendment to prevent reasonable health inspections, and

it should not-be expanded to that point. It has been the

vigilance of. public health officers and*their well-integrated

programs that have saved this country ffpm some of the

epidemics, seourges and health menaces that would in-

, evitably have occurred. To vonfine health inspections to

instances where there. is cause for issuance of*a warrant

o

‘would be to deal a crippling blow to these sanitation pro-

Respectfully submitted,

Jon W. ANDERSON,

City Attorney, —

Chattanooga, Tennessee.

Rocer ARNEBERGH,

City Attorney,

Los Angeles, California

J OHN C. Banks, «

City Attorney, -

Denver, Colorado. -

ALEXANDER G. Brown,

~ City Attorney, -

Portland, Oregon.

N ATHANIEL H. Goipericx,

- Corporation Counsel,

Detroit, Michigan.

Wriuus.N. Gurrmay,

City Counsel,

grams. The decision of the court below should be affirmed.

| ee

“CLaupE V. 5 ONES,

City Attorney,

Durham, North Carolina. |

Raup# S. Locuer,

Director of Law, |

__ Cleveland, Ohio. '

fg Watrter J. Mattison,

City Attorney, :

- Milwaukee, Wistonsin..

JoHn C. MELANIPHY, -

Corporation Counsel, , |

‘Chicago, Hlinois.

Baryett I. Suvr,

Corporation Counsel,

Portland, Maine.

Cuartes H. ‘TENNEY,

Corporation Counsel,

New York, New York.

Passaic, New Jersey. |

Cuar.es §. Ruyye; ©

Brice W. Ruyve,

S. Wuire Ruyyz, Jr,

fess 839 Seventeenth Street, N.W..,.

Pes > . Washington 6, D.C.