# Brief Amicus Curiae — Camara v. Municipal Court of City and County of San Francisco > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0088%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief Amicus Curiae - **Published:** January 1, 1967 - **Citation:** 387 U.S. 523 ## Text * 2 ‘ N 1 ; ° » . — : 3 a . e Supréme Court, U.S. 1 Sr. u. FI IL ED [ 9 JAN 5 1967 IN THE JOHN f. DAVIS, OLERK ‘SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1966 No. 92 ~ ROLAND CAMARA, Appellant, 1 MUNICIPAL COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Appellee. No. 180 NORMAN E. SEE, Appellant, v. . CITY OF SEATTLE, Appellee. APPEALS FROM THE DISTRICT COURT OF APPEALS OF THE STATE « ‘OF CALIFORNIA, AND THE SUPREME COURT OF THE STATE OF WASHINGTON. | : BRIEF AMICI CURIAE OF THE MEMBER MUNICI- PALITIES OF THE NATIONAL INSTITUTE o MUNICIPAL LAW OFFICERS. [LIST UF COUNSEL ON INSIDE FRONT COVER] . 00 14 : 755 4 4 . f ee ee — . | Sonner Inpex interest of Amici Curiae . F e Rp 3 Argument: E Constitutional Prohibitions Apply Only To Searches Determined to Be ‘*Unreason- able’? After Consideration ai All Interests rr II. The Public Interest neee Commercial 5 ‘and Housing Inspections .............:.. . III. a City Experience Underscores The Health and Safety Needs Which Can Only Be Met By Routine Periodic r sk kha DKRO Eh nate IV. The Need For Periodic Inspections Has i Been Recognized Not Only By Cities But „ By The Congress in Its Efforts To Solve : es ND ER es ots as ae Oe'ges 2 V. Interest of Individual Commercial Prop- erty Owner and Householder i in Absolute Ze VI. Balancing of The n of Publie Need And Individual.Privacy'............... VII. One Rebel A Year FFF . ‘onclasion Le Fog ning TE ny a Dan 3 Ee Tania or Avrnonrrns Cases: American Communications Ass 'n v. v. Douds, 399 ( * Berman v. Parker, D Camara v. Municipal Court, 237 Cal. App.2d 128, 46 Cal. Reptr. 585 (1965) et eee er Commonwealth v. Hadley, 1359 Mass. Adv. Sheets 1966, decided by Sup. Judicial Court a re reer 1966. 8 ti ° * INDEX ee Page ger v. City of Spertanburg, 107 S. E. 2d h ˙m»-Aʃ˙1iͥͤ os . . 19 District of Columbia v. Little, 339 U.S. 1 2, 19 Frank v. Maryland, 359 U.S. 360 nern 17, 18, 19 Jacobson v. Massachusétts, 197 U. ee 17 North American Cold Storage Co. v. Chicago, Rule: J 3 RRL Fae Serre 17 - Ohio ex rel Eaton v. Price, 364 U.S. 263 ...... 2 Reynolds v. United States, 98 U.S. 1415 17. Schenck v. United States, 249 U.S. 477 17 Seattle v. See, 67 Wn.2d 465, 408 P2d 262 (1966). 19 St. Louis v. Evans, 337 8. W. 2d 948 (Ne 1960) 19 Constitutional Provisions, Statutes, Ordinances and Court Housing Act of 1949, as Amended, Title I, See. r eres „ San Francisco, Cal., Ordinane: N 9 15 Seattle, Wash., Ordinan ee 15 U.S. Const. Amend. IV............. 3151 17, — N U.S. Const. Amend. XIV ........ N 3, 4, 16,19 q U.S. Sup. Ct. Eule 42 (4 1 . - Miscellaneous: Amoebic Dysentery in Chicago, 24 Am. J. Pus. Haran 756 (1884))))) : eee : oo D.C. Dept. Licenses & Inspections 3 . Hovs- 5 mo Cobn Exrorcement’’ (Dec. 24, 1958) 11 Fire Journal. Vol. 60, No. 5, September 1966, „Fires and Fire Losses Classifled 1965 3 Grand Jury Presentment, In the Matter of the Investigation of the Enforcement of Any and All Laws Concerning Hazardous and Unsani- tary Conditions in Dwellings, eto, Kings County Court, N.Y. (Jan. 28, 1953) a ashington Star, Aug. 6, 7, 1949 ............ 11 ‘‘Workable Program for Community Improve- ment, Answers on Codes and Ordinances, Pro- gram Guide 1, Dept. of Housing and Urban a December 1965, GPO 912-419 .. 13-14 | IN THE Suhr COURT OF THE UNITED STATES mov! net OCTOBER, TEEM, 1066 4 VVA ROLAND “CAMARA, Appellant, '\ MUNICIPAL COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Appellee. * * No. 180 NORMAN E. SEE, Appellant, ‘ "2 . . N 8 v. e ; CITY OF SEATTLE, Appellee: ' APPEALS FROM THE DISTRICT couRT OF nom oe . OF JALIFORNIA, 2 THE SUPREME COURT OF THE STATE OF WASHINGTON. BRIEF AMICI CURIAE OF THE MEMBER MUNICI. PALITIES OF THE NATIONAL INSTITUTE OF MUNICIPAL LAW OFFICERS. . Interest of Amich / Ouriae The »National Institute of Municipal Law Officers (NIMLO) is an-organization composed of more than thir- teen hundred municipalities located in each of the fifty. 8 : 5 5 ae states, the District of Columbia and Puerto Rico. member city acts through its-chief legal officer, known vari- ously as City Attorney, City Solicitor, Corporation Counsel, Director of Law, etc. This brief is filed pursyant to. rule 42(4) of this Court. The m bers of NIMLO are political subdivisions of states, and rief is sponsored by their authorized law officers. The issue presented in these cases is of vital interest not ae to the Cities of Seattle and San Francisco but to all f munieipalities which seek to prevent health and fire hazards and exercise other necessary police power functions under ordinances providing for reasonable inspections of com- _ mercial buildings and private houses. The issue is also of vital interest to the millions of inhabitants of those mu- . nicipalities ‘whose life and health and parr. are — tected by such inspections. „ The members of NIMLO were represented by brief amici curiae and also in oral argument in the first case presenting to this Court thé issue of the constitutionality of municipal housing inspection, District of Columbia v. Little, 339 U.S. 1 (constitutional issue not decided). They were also repre- sented by brief amici curiae in Frank v. Maryland, 359 US. 360 and Ohio ex rel Eaton v. Price, 364 U.S. 263. It is be- cause of the col ective experience of the NIMLO municipali- ties with the for reasonable inspection ordinances, and their awareness of the danger which is posed to the health, safety, and general welfare of their respective com- munities by these attempts to eliminate those —. that this brief amici curiae is. filed. a I The richts guaranteed by the Constitution are not ab- solute. In the case of the right to privacy under the fourth amendment, only .unreasonable ‘searches are prohibited. ; . ; . 4 1 = f< & 3 The same limitation, though not in specific terms, applies to the right to privacy under the fourteenth amendment. Whether a search is or is not unreasonable depends upon a balancing of all interests for and against allowing · the search. In this case, the interest of all the people in guard- ing the public health and /safety outweighs the interest of the individual n in being free from the slight i in- - convenience caused by reasonable municipal inspection ‘of commercial buildings ‘and dwellings. -Commercial build- ing and housing inspections are not unreasonable searches (or seizures} within the meaning of the Fourth or . teenth Amendments. . . 0 ARGUMENT — — 5 . : Z = 3 ‘ + I. onetivetSieal Prohibitions Apply Only to Searches De- termined To Be Unreasonable After Consideration of All Interests and Facts. The civil liberties guaranteed by the Constitution ; are not absolute. They are subject to reasonable limitations in the exercise of the police power of the state. American Com- munications Ass’n..v. Douds, 339 U. 8. 382, 398-99. This Court has said: pass 5 “We n never held mat . chen are absolute. The reason is plain. As Mr. Chief Justice Hughes put it, Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintain- ing public order without which liberty itself would be™ lost i in the excess of unrestrained abuses. Id. at 399. Moreover, the 8 of individual privacy by * Fourth Amendment is by its language specifically qualified. It is not an absolute prohibition of all searches of commer- cial buildings and houses. It prohibits only those which are ‘‘unreasonable searches.“ (Emphasis added.) | ‘A ; — 4 3 N . | oo x } : 4 . ; ih af The same limitation must be read into the due process of N law clause of the Fourteenth Amendment. The detérmina- tion of whether inspection of commercial buildings under the San Francisco and Seattle ordinances ig an unredson- able search within the meaning of the Constitution will depend upon a balancing of interests between the right = * an individual to privacy in his own home or commercial building and the duty of a municipality to guard the 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. thefr argument. Because of 8 the collective experience-of more than thirteen hundred NIMLO member cities.all over the nation in in fire prevention and sanitation, Amici Curiae feel particularly quali- fied to bring to the attention of this Court the gravity and importance of the public interest in the — of reasonable inspection ordinances. U. The Pail Interest Requires Commercial and Housing 3 Commercial building ani dwelling ne oannot be made from a courthonse. It is not a question primarily of : the inconvenience involved in procuring a warrant every time there is a complaint as to unsanitary or unsafe con- ditions. The fact is that the public cannot be protected merely by following up warrantable complaints. The major public health and safety programs in this country grounded on the concept that it is through * conditions which reqplt in health and safety ‘hazards, amd not in the punishment of ‘violators, that the public welfare - 0 best protected. i A reversal of the decisions of the state’ courts in these cases would destroy the systems of preventive inspections — now set up all over this country, and would make fire and 0 * * — ii eit Maiitaaidain aenlibadaaiataemanaien: 300 4.x aiaaeene . 2 2 * * 1 — 5 safety inspectors mere process servers tor the Pp of abating conditions which have already grown to the stature of public menace.’ Effective health, fire and safety adminis- tration is not based upon complaints, but is the result of . ‘periodic scientific checks by trained inspectors to determine health, fire and safety conditions and recommend such cor- rective action as is needed to prevent or eliminate hazards | and dangers. This fact is amply illustrated by the results of a test survey conducted by a grand jury in New York City convened to investigate hazardous and unsanitary con- ditions in housing. Surveyed by an inspection team were fifteen square blocks of housing in three respective areas of Brooklyn, in which 567 housing division violations had been previously reported on complaint. The inspection survey revealed an actual total of 12,445 violations in the test area, many of them classed as hazardous. More- over, other New Vork City inspections indicated that this ratio was not out of line. Grand Jury Presentment, ‘‘In the Matter of the Investigation of the Enforcement of Any and All Laws Concerning Hazardous and Unsanitary Con- ditions in Dwellings, etc.,“ Kings n Ct., N. V. * 1, pp. 6-8 (J anuary 28, 1953). Only 567 violations on file prior to the test nero as against 12,445 violations after the test! Can there be any dob of the need for regular Preventive inspections? Ul. ‘Ilustrative City Experience Underscores the Health and Safety neg Oo gaa alan ‘Routine Periodic Inspections. Programs of preventive inspection similar to that con- ducted by San Francisco and Seattle have drastically re- duced fire hazards in countless other cities in this country. These inspections have been part of a scientific plan to edu- cate the householder into avoiding catastrophe rather than ee o- 0 6 eqnfining municipal efforts to extinguishing fires after they have occurred. History is replete with city-wide fires : Tandem in 1666, New York City in 1835, Boston in 1872, Chicago in 1871, and Baltimore in 1904, and Seattle in 1889. Destructive fires took a toll of 12 ,000 lives and nearly 61.75 billion in property in 1965 in the United States accord- ing to a report by the National Fire Protection Association, „Fires and Fire Losses Classified 1965, „Fire Journal, Vol. 60, No. 5, September 1966. The fire fatality total showed. an increase of 100 over tlie previous year, and brought the figure close to the record mark of 12,100 fire deaths reported in 1954. One small note of encouragement in the report was a slight decline in fire deaths in homes. In 1965 approxi- mately 6,500 persons were killed in home fires, eompared > with 6,550 in 1964. Almost one-third of all fire victims in the home—about 2,100—were children. The 1965 property loss total was $1,741,300,000; a 5.4 per. cent increase from the previous year, when fire cost $1,652, 700,000. 1965 was the sixth successive-year in which the loss total has ex- _ ceeded the. $1.5 billion mark. Among the principal factors in the increase in property losses was a sharp rise in the cost of fires in industrial plants, private . stores, hotels and churches. Ibid. ä a There is a great need for inspection in e with garbage and rodent nests, two of the greatest sources of thé 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 the information received, the effective work that is being done in preventing epidemies · in this country will henceforth be curbed. For every neighbor who complains, there are hun- dreds who are unwilling to become involved in a backyard fight to preserve the health of the community, others who de are phlegmatio to the 5 and still others who are —_ offenders: ° The Chicago Board of Health, from November, 1965 to December, 1966, conducted a massive program to eliminate rodent infestation in the city on a door to door, block by block basis, inspected 46,007 buildings of which 18,654 were found to be rodent infested. In addition to being rodent . infested, 80%, of the buildings inspected were found to be insect infested. The Chigago Fire Prevention Bureau, from January 1 to December 1, 1966, conducted scheduled or systematic inspections of 67,155 residential, 14,014 hotels, 51,360 industrial, 37,458 commercial, 12,548 schools; 2,843 hospitals and 6,623 day nurseries. And during the same period of time the Chicago Building Department made 47,- 461 inspections pursuant to complaints received, 37,168 inspections in conservation areas, and 22,713 buildings as _ prescribed by the City Code. For the year 1965, the City of Cleveland Division of Hous- ing effected 50,254 inspections and found 42,622 violations. — The. Cleveland Health Department made 55,913 inspections of commercial establishments and found 33,809 violations, and inspected 38,312 dwellings and found 27,553 violations. In addition the Cleveland Fire Prevention Bureau made 17,080 inspections and 7,422 reinspections, -_ found 14, 892 violations. The City of Boston Housing Inspection 8 dur ing the period May, 1965 through September, 1966, in- spected 48,806 dwellings, 20,056 buildings, found 56,338 violations, and made 44,484 reinspections. The Boston Re- development Agency also conducted 6, 220 — Guring that period. The Baltimore Bureau of Building Tuepection made 13,408 inspections in 1965. As was shown in Frank v. Maryland, 359 U.S. 360, 372, fn.16, the Baltimore Health Department * had made 36,119 housing sanitation inspections in the year. 1958. The City of. 1 Angeles Conservation Bureau made a total of 129,574 inspections in 1965-66. And during that same period the Los Angeles Bureau of Fire Suppression inspected 76,527 dwellings, made an additional 183,596 gen- eral inspections, 7,962 vacant lot inspections and 5,333 un- classified inspections, during the course of which they found a total of 28,569 hazardous violations. : The City of Portland, Oregon conducted 1 surveys of 27,374 dwellings in 1966, and found a total of 4,514 vio- _ lations of health and safety regulations. During 1965 the Portland Fire Marshall condueted 15,851 routine fire i inspec- tions, and 8,827 special inspections on EERE and noted a total of 17,209 violations... The City of Jacksonville, Florida, anion 21 11¹ fire prevention inspections and reimspections of apartment buildings, business and industrial establishments in 1965, and during the same period: the Jacksonville Health De- partm®nt conducted a total of 135,330 inspeetions. The City and County of San Francisco, whose ordinance is involved in the instant case, through its Health Depart- ment made inspections in 1965-66 as follows: Apartments 46,626, Hotels 8,105, Dwellings 8,251, for a total of 62,982. The San Francisco Public Works Department for the same period conducted 13,337 building permits inspections, 52, _ 137 building inspections, 43,478 electrical inspections and 33,073 plumbing inspections... The San Francisco report ad- vised that their inspectors have been refused entry to prem- ises on less than ten occasions during the fiscal year 1965-66. The City of Seattle conducted the following. routine fire inspections of commercial.and industrial buildings: 131,971 in 1962; 88,297 in 1968; 63,516 in 1964 and 85,220 in 1966. 9 5 ao These statistics bear out the fact that hundreds of chou- sands of inspections are made by cities each year without a warrant and are sanctioned by the n majority of the people. ‘Cities maintain these costly inepection programs be- causa their people feel they are necessary for the protection of the general health, safety and welfare. The local govern- ments of this nation spend billions of dollars each year on sanitation activities. It is not the zeal to render a public _ service that impels cities to maintain these costly sanitation programs. It is the recognition of the fact that the control of garbage is the primary step in the control 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 increased where the garbage sani- tation is not adequately controlled. The same danger exists where housing inspectors are not allowed to inspect ' @wellings or commercial buildings for rodent —— and other health and safety hazards. * Possible health or safety hazards in Appen build. ing’ are not Appellants’ business alone. Fires ignited by ö safety hazards which might have been uncovered by munici- pal inspection spread to adjoining buildings and ‘houses, and have been known to level entire city blocks. Rédents which breed in filth do not stay at home, nor do the disease germs which they spread. A man’s heme may de his castle, but that castle no longer sits on a hill surrounded by a’ méat. The mddern ‘‘castle”’ is connested to a common water system, a common sewer system, a common garbage collection system, a common police, fire, health ‘and welfare service, a common telephone service, a common gas line, a common electric line, cemmon streets, alleys, sidewalks and : me ere was are frequently connected a common: r to e : 10 the houses on either side. A man’s home is his ‘‘castle,’’ but cities through health and safety inspections are trying to keep it from becoming his ‘‘casket.’’ The case of the open garbage can may not be as intriguing to students of constitutional law as a case involving free- | dom of speech and assembly, but the assemblage of rodents | and germs can have equally far reaching effect. A colony of rats is capable of increasing at the rate of six percent per day. One germ, after thirty divisions, becomes one billion germs—a formidable armed enemy. This is not fanciful, hut 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 op- erating inspection systems under laws which require war- rants issued upon a showing of probable cause to suspect a violation of the building, housing, health or sanitary code before. entering the house or building cannot be urged too strongly. It just cannot be reasonably done that way. Cause to suspect a violation would be present 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 or smelled from outside the building. Olfactory health control is no answer to the major health and safety problems of this country. The violations that smell repre- sent too small a portion of the whole. By the time putrefac- co tion sets in, very valuable time has been lost and an emer- gency phase has begun. The whole public health program is, predicated upon the basic principle that improper prac- tices. must be corrected and abated before N reach the stage of glaring danger. | .... altioenens ens. o- validated, countless cases of defective. building ‘and: house- hold — which inspections would discover will be — ; "3: 5 permitted to continue uncorrected. Defective -plumbing may cause back siphonage of sewage and other household wastes into the public water supply. The amoebic dysen- tery epidemic in Chicago in 1933, resulting in 100 deaths in over 1,000 known cases, was caused by just such a situation. Amoebic Dysentery in Chioago, 24 Am. J. Pub. Health 756 (1934). Water is also a vehicle for the dreaded diseases of cholera and typhoid fever. g The invalidation of commercial building and housing in- spection 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 gas. It is worth noting that about two years after the attempted inspection in District of Columbia v. Little, 339 U.S. 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 munici- pal inspection. Field inspections also play a vital ro ‘in urban redevel- opment and slum clearance. D. G. Department Licenses & Inspections Rep., Housing Code Enforeement”’ (Dec. 24, 1958). Federal government statistics show that. slums, which constitute only 20% of the total residential area of the average American city, produce 35% of all fires, 45% of major crimes, and 50% of disease. Id. at 23. In the im- portant case of Berman v. Parker, 348 U.S. 26, 32, this Court recognized that: „Miserable and disreputable W ‘conditions | may do moré than spread disease and crime and immorality. They may also suffocate the spirit by reducing the te 12 people vho live there to the status of cattle. They may pacer make none: an alinest insufferable burden.“ “ita is equally tree: and 3 that the Fourth Amend- b ment should not be interpreted as constituting a bar which prevents the legislature from protecting the values pointed out so vividly in Berman at 348 U.S. 33 where a Court said: b clusive. The values it represents are spiritual as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, 2 “was eee oe To impede the routine, periodic, were A natory ‘‘¢ivil’’ inspection of buildings and dwellings to pro- teot these concepts and values by the requirement of ob- __» taining hundreds of thousands of warrants in a time and court consuming. process can serve but one purpose, and that it to endanger the continued existence of our nations cities. There i is sina grave doubt whether any of the present state constitutio onal | and statutory’ provisions which authorize a court to issue warrants for specific kinds of searches and seizures, mostly in the criminal: area, would permit the issuance of a warrant for health and safety inspections. WW. “Whe Need tor Periodio In ’ Its Efforts to Solve the Oity Crisis”. The “city crisis“ is largely encompassed within the slum : areas of cities. art ofthe F planned inspections of build- rt ings are a major. of the Federal-City Cooperative pro- “The: concept of the piablio whine’ is „ Weed. si in- „Has Been Reeg. “ised Not Only by Cities But hy the ‘Congress in : — — — . gram to deal with the elimination of substanda hemes which are thus unfit for human habitation. oil. 1 The Congress has adopted federal-aid programs’ and authorised grants and the expenditure of billjens of dollars to cities to rehabilitate and improve the housing. and living conditions in our cities. A total financial responsibility for more than $78 billion was involved in the programs of the Department of Housing and Urban. Development as of September 30,1966. In order for a eity to obtain federal-aid for slum clearance, urban renewal, and. low-rent public housing, it must comply with the Local Responsibilities’’ as set out in Sec. 101 (a) (c) of Title 1, 3 Act of 1949, as pa as follows: That commencing three years see the er _qnactment of the Housing Act of 1964,* no workable program shall be certified or re-certified unless (A) the locality has had in effect, for at least six manths prior to such certification. or re-certification, a minimum standards housing code, related but not limited to health, sanitation, and occupancy requirements, which is deemed adequate by the Administrator, and (B) the __/ Administrator is satisfied that the locality is carrying se “Out an effective program of Werte to a 8 compliance with such housing code. 0 Under authority of this Act, the Administrator publched a“ Workable Program for Community Improvement, Ans- wers on Codes and Ordinances, Program Guide 1,“ which sets out the following specific. requirements’ with which a a must comply in order to be eligible for federal- aid: a codes review committee or similar group: to review codes and code enforcement , and objectively. . * September a 2064 (footnote ade). iy ed ty etalk ° W. 1. 14 the adoption of modern building, plumbing, elec- 3 housing and fire prevention codes during the — year after initial certification. effective ae net of codes following adoption a planned systematic housing code compliance pro- gram to be started within one year after the adoption. = the housing code. . accurate reporting on compliance activity nt a dicing that there is a reasonable use of appropriate local resources in terms of inspectors and funds needed to enforce compliance with the codes.’’ The importance of code enforcement is also shown by the fact that the Federal Government through the Department of Housing and Urban Development has a specific program of federal assistance to local government to stimulate such enforcement. It is submitted that the added burden of eng a Fourth Amendment warrant for each inspection under the requirements of Federal Laws would greatly impede the programs which the Federal Government and cities have - instituted to alleviate the persistence of wide-spread slums and blight which have resulted in a marked deterioration in the quality of the environment and the lives of large numbers of people throughout the nation. v. We er Wthel besen Propsity Oer d Householder in Absolute Privacy The r reasonableness of the search involved in these cases depends upon a balancing. of interests. It has been shown that the interest of the. . people—acting through their agents, municipalities—in exercising. police power through health and safety inspections is indeed gré at are the in- terests of the individual owner in * g an absolute 0 5 „ 2 * * ee ee ee EOS 15 right of privacy in his commercial building or home against such inspections. sab. 43 * N It should be noted initially that the overwhelming ma- jority of building and home owners feel their interests lie in permitting such inspections, and 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 owners who, like Appellants, feel differently? What are the dangers to such property owners if inspection is allowed? Unlike the householders in all casés in this Court where searches have been declared unconstitutional, these appel- lants are subject to no criminal prosecution. The inspect- ing official is not looking for evidende of a crime. Under the Seattle and San Francisco ordinances, as under most inspection ordinanees, if a health or safety hazard is found the owner is merely notified to ‘correct it and a penalty attaches only if he fails to comply. The result of the in- spection is. not that a defendant is convicted of a crime because of discovered evidence, but that. an unsafe con- dition in his building or home is corrected. This Court has correctly held that properly circumscribed inspections Without warrant, as an adjunct to a regulatory scheme for the general welfare of the community and not as a means of enforcing the criminal law, are valid: Frank v. “Mary- land, 359 U. g. 360. ec But what of the nuisance to the householder caused by. inspections?’ There is no contention in the instant eases that the owners were harassed by repeated inspéctions, nor that the inspections in question were to be made at an inconvenient time of the day. Indeed, the San Francisco erdinance under attack requires that the inspection be made at a reasonable time, and the particular inspection involved was attempted to be made during a reasonable hour. No E facts on the time of the attempted Seattle inspection are 16 given. There is no contention in the instant cases that the inspectors had any motive other than the discovery of a possible health, fire or safety 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 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 protection against the capricious action of government officials. It cannot be doubted that abuses of the health and safety inspection ordinances — be remedied if N should ‘transpire. VL ‘Balancing of the Interests of Public Nood and ha. | | vidual Privacy When the interests are balanced, then, the scales are grossly uneven. In order to preseve the nebulous private right of the Appellants and a few others like them, 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 in a filth strewn cellar should be suffi- cient. to tip the scales but in fact thousands of such deaths are a realistic possibility. : The fundamental purpose of the Fourth Amendment was certainly to secure privacy in the home, and the due process of law clause of the Fourteenth Amendment also protects the right of privacy. But it must be remembered that under the police power there is lawful interference in many in- stances with the liberty of individuals, their right to move around and their right to use their property. Individual fresdom must yield in some cases to the enforoement of rea- a regulations for the public welfare. The individ- ual’s right of privacy in his home should not give him the RG PRIETO LOE AE EE I BOD De NE PEER 7 17 right to refuse. entry for a reasonable fire or health inspec: tion any more than the right of free speech gives the right falsely to shout fire“ in a theater, Schenck. v. United States, 249 U.S. 47, 52, or the right of freedom of religion gives the right to offer human sacrifice, Reynolds v. United States, 98 U.S. 145, 166. 5 e Where public health and safety is at stake, this Court has sanctioned, as against constitutional objection based on individual rights, the power of the 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, it has already rec- ognized what the Amici Curiae urge upon it now: Time and experience have forcefully taught that the. power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a ’ specific problem, is of indispensable importance to the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of safe. guards necessary for a search of evidence of criminal acts. Frank v. Maryland, 359 U.S. 360, 372. VI. one Rebel e Year The dissent in Frank v. Maryland, 359 U. S. 360, 384, sug- ' gests that Submission by the overwhelming majority of the populace indicates there is no peril to the health pro- gram.’’ The Amici Curiae are unwilling to accept a theory | which makes the preservation of public health and safety de- pendent upon consistent submission by citizens to an inva- sion of their constitutional rights. If we believed housing . Inspections to be unconstitutional, we would encourage citi- ens to resist! g J It is true that most housing occupants now welcome the . r * ) ; g 18 periodic visits of municipal inspectors. But there are others who, while realizing the value of housing: inspection, are more concerned at the moment the inspector knocks on their door with the et prospects of having to spend. ’ time and money to co possible defects. The experience of the City of Portland, Oregon, with a program of voluntary home inspection indicates what can happen where entry is by consent. The records of the city for the year 1966 show that out of 16,171 calls made where occupants were at home, entry was refused in 2,540 cases. In the inspections which were made, 4,514 hazardous con- ditions were noted and called to the attention of the occu- one rebel a year,” says the Frank dissent, is not too great a price to pay for the right of privacy. The Amici Curiae submit that the human suffering and loss of life from fire and disease which can result from the undetected code violation of even one rebel a year are too great a price to pay for the type of privacy which Appellants seek. That there may be a significant increase in the number of refusals of entry if this Court declares housing inspection of the _ kind here involved unconstitutional is a reasonable, and „ possibility. D 19 Conclusion It is worth noting that in over 150 years of city in rem -inspections for health and safety purposes, only one appel- late court has held that a Fourth Amendment warrant is required and it was affirmed on appeal to this Court for other reasons without reaching the constitutional issue. District of Columbia v. Little, 339 U.S. 1. It is also note- worthy that not one of the five highest state courts “to pass en this question since this Court’s landmark decision in Fran v. Maryland, 359 U.S. 360, have found fault with the rule that reasonable inspections are constitutionally im- perative for the protection of the health safety and welfare of the millions of inhabitants of cities. M. DePass v. City of Spartanburg, 107 S.E. 2d 350 (S.C. 1959); St. Louis v. Evans, 337 S. W. 2d 948 (Mo. 1960); Camara v. M ipal Court, 237 Cal., App. 2d 128, 46 Cal. Reptr. 585 ); Commonwealth v. Hadley, 1359 Mass. Adv. Sheets 1966, decided by the highest court of Massachusetts on December 2, 1966; and Seattle v. See, 67 Wash. 2d 465, 408 _— 262 , (1966). This brief is not submitted with a desire to eben the individual rights guaranteed to all of us by the Constitution, but in an attempt to put those rights in a proper perspec- tive. It is earnestly submitted that it was never the in- tended purpose of the Fourth and Fourteenth Amendments to prevent reasonable building and housing inspections to protect the public health and safety, and they should not be expanded to that point. It has been the vigilance of public health and safety inspectors and their well-integrated pro- grams that have saved this country from some of the epi- demics, scourges and conflagrations that would otherwise inevitably have occurred. To confine inspections to in- stances where there is reason to suspect a hazardous con- dition from outside the commercial building or house would 20 be to cause the preventive health and safety programs: based upon periodic scientific checks to grind to a halt in cities throughout the nation. The decisions of the Courts below should be affirmed. Respectfully submitted, 2 M. Mason 1 * — I. . ö Ci \ttorney, rporation Counsel, Jacksonville, Florida. Portland, Maine. RoBert — — N —— G. Brown, Corpora on U rn U ; Detroit, Mi . Portland, Oregon. 1 O Cox Non, a 1 = StouanH, i ttorney, 7 ity rey, San Francisco, California. Lawrence, — Heasert C. Horrman, Davm Stax1, City Counselor, City Solicitor, Kansas City, Missouri. Pittsburgh, Pennsylvania. * 55 SHOLENBERGER, 1 Sane, — ttorney, ey i rey, Columbia, South Carolina. Pato Alto, California. 2 2 1 — 2 * — ttorney, rporation Counsel, hee ng — Chicago, Illinois. - Roczr ARNEBERGH, Marvin J. GLINE, City Attorney, Corporation Counsel, Los Angeles, California. Rosemont, Illinois. (395-4) —— 3 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0088%3A09. Public record. Not legal advice.