Brief Amicus Curiaeoo — See v. City of Seattle

. a ee

. BRIEF AMICI CURIAE OF THE MEMBER MUNICI-

ae. 7 ?

ee 7 ee sik io Offioe-Suprame Court, U.

’ , a Se Se F I a E D

JAN 5 1967

IN THE JOHN F. DAVIS, BLERK

SUPREME COURT -OF THE UNITED STATES

OCTOBER TERM, ‘oes

-No. 92

ROLAND CAMARA, Appellant,”

. ee , v. ;

MUNICIPAL COURT OF THE CITY AND COUN:*Y

_ OF SAN FRANCISCO, Appellee.

Yr

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.

>

PALITIES OF THE NATIONAL INSTITUTE OF

MUNICIPAL LAW OFFICERS. ~

- [LIST OF COUNSEL ON INSIDE FRONT COVER]

am

Waa M. Maprson

Atto:

Rent me a

- Roperr Riesp,

Corporation Counsel,

Detroit,-Michigan. .

THOMAS M. O'Connor,

City Attorney,

San Francisco, California.

Hersert C. HorrMan,

City Counselor,

Kansas City, Missouri.

JoHN W. SHoLE ‘BERGER,

City Attorney

Columbia, South Carolina. )

— J. —

Attorn

aukee,

"Portland, Oren.

Cuaruss D. _

City Attorn

Lawrence,

‘Davip Srau.,

City Solicitor,

Pittsburgh, Pennsylvania.

Ropert E. Micwatsx1,

City Attorn

Palo Alto, alifornia.

—- E co 7

rporation Counse

_ Chicago, Illinois.

Marvin J. Gunx, ” .

“ Corporation Counsel,

Rosemont, Illinois.

.

FS

eae aerh pale seas to te moet Tee ee ene, hn ae ee Oe

mae

INDEX

* Sussect Inpex

Summary of eet paras “Dyed Gane CPP

Argument:

I. Constitutional Prohibitions Apply Only To

Searches Determined to Be ‘‘Unréason-

able’’ After Consideration of All —

OR” REIT Talent eae me Ca

II. The Public Interest Requires ieiitaiiatil

ITT.

and Housing Inspections ................

Illustrative City Experience Underscores

' The Health and Safety Needs Which Can

¥.

VI.

Only. Be Met By Routine Periodic

IN 6 on sh unin does ees ene

Page

tc =

ve

The Need For Periodic Inspections Has

Been Recognized Not Only By Cities But

By The Congress in Its Efforts To Solve

ee MP NS cence cna w vehen aus

Interest of Individual Commercial Prop-

erty Owner and Householder in Absolute

ETC tery ey Oa re ca k

Balancing of The Interests of Public Need

‘And Individual Privacy

‘VIL One Rebel. A Years.

GE 8 ec coke a eine | -

Cases:

TABLE OF AUTHORITIES .

American Communications Ass’n v. Douds, 399

U. Ss. Me fc tine eee re ie, Ones ;

Berman v. Parker, 348 U.S. 26 ..........

Camara v. Municipal Court, 237 Cal. App. 2d 128,

46 Cal. Reptr. 585 (1965) MER ayer e ee

Commonwealth v. Hadley, 1359 Mass. Adv.

Sheets 1966, decided by Sup. Judicial Court

of Mass., on December 2, 1966. a I

—395-4

ii

\%

INDEX

DePass v. City of Spartanburg, 107 S.E.2d

oh eva ee ken Kee kx Kak S ' ‘19

District of Columbia v. Little, 339 U. _ eee 2,19

Frank v. Maryland, 359 U.S. 360 .... 2, 7, 15, 17, 18, 19

Jacobson v. Massachusetts, 197 US ii ...:.... 17

_ North American Cold Storage Co. v. Chicago,

en SO Ss ois bee nantes 17

Ohio ex rel Eaton v. Price, 364: U.S. 263 ...... 2

Reynolds v. United States, 98 U.S. 145 ........ 17

Schenck v. United States, 249 U.S. 47.......... 17

Seattle v. See, 67 Wn.2d 465, 408 P2d 262 (1966). “19

St. Louis v. Evans, 337 S.W. 2d 948 (Mo. 1960) . 19

Constitutional Provisions, on Ordinances and Court .

Rule: ee

Housing Act of 1949, as Amended, Title I, Sec.

PN el un oles necks eee 13

* §an Francisco, Cal., Ordinance .............. .. 2

' Seattle, Wash., Ordinance ...............°.... 15

U.S. Const. Amend. IV........ hens 3,.12, 14, 16, 17, 19

ef eo ee |) eee 3, 4, 16, 19

- U.S. Sup. Ct. Rule 42 (4) ..... sakes hunter te me 2

Miscellaneous: ~~...

Amoebic Dysentery in Chicago, 24 Am. J. ‘Pos. |

DDE CE pias se kee ak oc e's ll

- D.C. Dept. Licenses & Inspections Rep., ‘‘ Hous-

inc CopE EnrorceMEenT’’ (Dec. 24, 1958) ....: 11

Fire Journal. Vol. 60, No. 5, September 1966,

‘‘Wires and Fire Losses Classified—1965’’ .. 6

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, etc.,’’ Kings

County Court, N.Y. (Jan. 28, 1953) -......... . §

Washington Star, Aug. 6, 7, 1949 eae 11

_ **Workable Program for Community Improve-

ment, Answers on Codes and Ordinances, Pro-

gram Guide 1,’’ Dept. of Housing and Urban

"Development, ‘December 1965, GPO 912-419 .. 13-14

Pe a a pile mAb ale ton ean

>

' IN THE

SUPHEME COURT OF THE UNITED STATES

| OCTOBER} TERM, 1966

No. 92

ROLAND CAMARA, Appellant,

| ad

MUNICIPAL COURT OF THE CITY AND COUNTY

OF SAN FRANCISCO, Appellee.

No. 180

, NORMAN E. SEE, Appellant,

|

Vv.

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. OF

MUNICIPAL LAW OFFICERS. .

Interest of Amici Curiae

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

~ (2)

ee

_ states, the District of Columbia and Puerto Rico. Each

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 pursuant to rele 42(4) of this Court.

The members of NIMLO are-political subdivisions of states,

and this brief is sponsored by their authorized law officers.

The issue presented in these cases is of vital interest not

only to the Cities: of Seattle and San Francisco but to all

municipalities which seek to prevent health and fire hazards

and exercise o@er 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 ow are pro-

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 the 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 U.S.

360 and Ohio ex rel Eaton y. Price, 364 U.S. 263. It is be-

cause of the collective experience of the NIMLO municipali-

ties with the necessity 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 ordinances,

that this brief amici curiae is filed. ;

‘The rights guaranteed by the Constitution are not ab-

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

amendment, only unfeasonable searches are prohibited.

ee Le

3

The same Naitation, 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 intérests 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 householder in being free from the slight 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 earth or Four-

teenth Amendments.

ARGUMENT

I. Constitutional 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.S. 382, 398-99. This

Court has said:

‘We have never held that such freedoms 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 in the excess of unrestrained abuses.’ ’’ Id. at 399.

Moreover, the guarantee of individual privacy by the

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.) :

The same limitation must be read into the due process of

law clause of the Fourteenth Amendment. The determina-

tion of whether inspection of commercial buildings under .

the San Francisco and Seattle ordinances is an unreason-

_ able search within the meaning of the Constitution will

depend upon.a balancing of interests between the right of

‘an individual te privacy in his own home or commercial |

building and the duty of a mumicipality to gu rd the health

and welfare of all its people through the exéreise of its

police power. It is to this balancing of interests that the

Amici Curiae wish to direct their argument. Because of

the collective experience of more than thirteen hundred

-NIMLO member cities all over the nation in fire prevention

and sanitation, the Amici Curiae feel particularly quali-

fied to bring to the attention of this Court the gravity and —

importance of the public interest in the pevegyretion of .

. reasonable inspection ordinances.

IL The Public Interest Requires Commercial and Housing

Inspections ae

Commercial building and dwelling inspections cannot be

made from a courthouse. It is not a question primarily of

the inconvenience involved in- procuring a pga | every

time there is a complaint as to unsanitary or e 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 are

grounded on the concept that it is through preyention 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 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

meee LL

08 ene te ee ee

eee Ae

safety inspectors mere process servers for the purpose 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 i 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. Thé inspection -

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 litie. Grand Jury Presentment, ‘‘In ©

the Matter of the Investigatioff of the Enforcement of Any

and All Laws Concerning Hazardous and Unsanitary Con-

ditions in Dwellings, etc.,’’ Kings _— Ct., N. Y., pt. 1, pp.

6-8°(January 28, 1953).

Only 567 violations on file prior . the test inspection as

against 12,445 violations after the test! Can there be any

Y doubt of the need for regular preventive inspections?

ITY, Illustrative Oliy Rxpeviense Underveeres the Maabt .

and. Safety Needs Which Can Only Be Met by

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

a

" 6

confining municipat efforts to extinguishing fires after they .

have occurred.

History is replete with city-wide Seen: London in 1666,

New York City in 1835, Boston in 1872, Chicago i in 187 1, and

Baltimore in 1904, and Seattle in 1889. — oo

Destructive fires took a toll. of. 12,000 lives Bad nea@ly

" $1.75 billiofi 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 the previous year, and brought the .

figure close to the record mark of 12,100 fire déaths reported

in 1954.. One small note of encouragement in the report was -

a slight decline i in fire deaths in homes. In 1965 approxi-

mately 6,500 persons weré killed in home fires, compared

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 $f, 652,700,000: 1965 was

the sixth successive year in whicl? 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

eost of fires in industrial plants, private dwellings, stores,

hotels and churches. Ibid.

There is a great need for inspection 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 the

information received, the effective work that is being done

in preventing epidemics 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

Be ne Nae ee ee eet) ome et

Mote.

7 . . cs

are phlegmatic to ~ danger, and still others who are joint

offenders.

_. The Chicago Board of Health, from Nov ember, 1965 to

December, 1966, conducted a Massive program to eliminate

rodent infestation ‘in the city én a door to door, block by .

_bi0ck 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 Chicago Fire Prevention Bureau, from

January 1 to December~1, 1966, conducted scheduled ‘or

systematic inspectioris 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 foumd 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, and found 14,-

892 violations.

The City of Boston Housing Inspection Sesniinnns dui

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 inspections sduring .

that period.

The Baltimore iam of Building ineeaiiees rn 13,408

inspections 'in 1965. As was shown in Frank v. Maryland,

- 359 U.S. 360, 372, fn.16, the Baltimore Health-Department

DONOR STEROL RARER ERT EY | OPM ERARN is Sas = ais MAT Soe pyre rh:

8 ‘

.. had made 36,119 ae sanitation inspections i in the a

, a

% in 1962; 88,297 in 1963; 63,516 in 1964 and-85,220 in 1965. _

1958.

; The City of Los 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 home 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 conducted 15,851 routine fire inspec-

tions, and 8,827 special inspections on —_— and noted

oa total of 17,209 violations..

The City of Jacksonville, Florida, eaidited a1, 111 fire

prevention inspections and reinspections of : apartment

buildings, business and industrial establishments in -1965,

and during the same period the Jacksonville Health De-

partment conducted a total-of 135,330 inspections. —

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’ 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

=

?

These statistics bear out the fact that hundreds of thou-

sands of inspections are made by cities each year without a

warrant and are sanctioned by the Noemie i majority

of the people.

Cities maintain these costly: inspection programs 7

cause their people feel they are necessary for the protection

of the general health, safety and welfare. The local govern-

nents 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

dwellings or commercial buildings for rodent en

and other health and safety hazards.

Possible health or safety hazards in iain build-

ing’aré not Appellants’ business alone. Fires ignited by

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. Rodents

which breed in filth do not stay at home, nor do the disease

germs which they spread. A man’s home may be his

castle, but that castle no longer sits on a hill surrounded by

a’moéat. The modern ‘‘castlé’’ is connected to: a: common

watér system, a common sewer system, a comimon garbage

collectién system, a common police, fire, health and welfare

service, a common telephone service, a common gas line, a

common electric line, common streets, alleys, sidewalks and

drains, and are renal counected by common walls —

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,

~ 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 op-

_ erating inspection systems uhder 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-

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 they reach the

‘stage of.glaring danger.

If building and housing inspection intents are. ‘in-

validated, countless cases of defective building and house-

-hold plumbing which inspections would discover will be

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 Chicago, 24 Am. J. Pub. Health 756

(1934). Water is also a vehicle for the dreaded diseases of

cholera and typhoid fever.

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 a vad munici-

pal inspection.

Field inspections also play a vital role in urban redevel-

opment and slum clearance. D. €. Department Licenses &

Inspections Rep., ‘‘Housing Code Enforcement’’ (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 housing conditions may

~do more than spread disease and crime and immorality.

They may also suffocate the spirit by reducing the

12

_ {people who live there to the status of cattle. They may

; indeed make living an abinest earned burden.’’

ts is equally true. and aceaiiien that the Fonrth Amend-

ment should not be interpreted as constituting a bar which

prevents the legislature from protecting the values pointed

out so vividly i in Berman at 348 U.S. 33 where this Court

said:

. The concept of the public welfare is er and in- :

‘elusive. The values it*represents are spiritual as well

*::as monetary. It is within the power of tlie legislature

’. to determing that the community should be beautiful as

. well as healthy, spacious as well as clean, well-balanced

- as well as carefully aneneact .

To impede the routizie, Fiodic, area-wide non-discrimi-

natory ‘‘civil’’ inspection of buildings and dwellings to pro-

tect these concepts and values by the requirement of ob-

taining hundreds of thousands of warrants in a time and

court eonsuming. process can. serve but.one purpose, and

that it to endanger the continued existence of our nations

cities.

There i is also grave aut whether any of the present state

constitutional 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.

IV. The Need for Periodic Inspections Has Been Hecog-

zr nized Not Only by Cities But by the Congress in

Its Efforts to Solve the ‘‘City Crisis’’. —

~* The “‘gity crisis” i is largely encompassed withini the slum

areas of cities. * Area-wide, planned inspections of build-

ings are a-‘major part of the Federal-City Cooperative pro-

13

gram to deal with the elimination of substandard —— “

which are thus unfit for L man habitation. __

The Congress has adopted federal-aid programs: sa

authorized grants and the expenditure of billions 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 acity 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, palin Act of 1949, |

as amended, as follows:

. That: commencing three yeate after. the date of

ennsiauna 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 months. ‘prior

to such certification or re-certification, @ 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 ©

out an effective program of. patoreenpent to achieve

compliance with such housing code. . . ae

Under authority of this Act, the Adminiistratey riublished

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 ety must comply in order to be eligible for federal-aid:

‘. . . a codes review committee or similar group: to

review codes and code enforcement technically and

objectively. ,

* September 2, 1964 (footnote added).

14 ?-

ott the adoption of. modern building, plumbing, elec-

trical, housing and fire prevention codes during the

first year after initial certification. ,

“«. », effective enforcement of codes following adoption

‘and planned systematic housing. code compliance pro-

gram to be started within one year after the adoption '

of the housing code. -

. accurate reporting on domiptiance activity and a

. dive that there is a reasonable use of appropriate

local resources in terms of inspectors and funds needed ~

to enforce compliatice 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 shennan to stimulate such

enforcement.

It. is submitted that the “added ‘barden of obtaining a_.

Fourth Amendment warrant for each inspection under the

requirements of Federal Laws would greatly impede the

programs which the Federal Go ent 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. Interest of Individual Commercial Property Owner

| and in Absolute Privacy ,

The 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, _

municipalitiés—in exercising police power through health

and safety inspections is indeed great. What are the. in-

terests of the individual owner in a maintaining an absolute

16.

right of privacy in his commercial building or home against

such inspections.

It should be noted initially that the overwhelming ma-

jority of building and home owners feel their interests lie.

in permitting such inspections, ard welcome the periodic

visits of municipal inspectors which they know can uncé¥er

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 > gaa

property owners if inspection is allowed? 7

Unlike the householders in all cases 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 evidence of a crime. Under '

the Seattle and San Francisco ordinances, as under most

inspection ordinances, 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.S. 360.

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 inspections, nor .

that the inspections in question were to be made at an

inconvenient time of the day. Indeed, the San Francisco

ordinance 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

- facts on the time of the attempted Seattle inspection are ve

.

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 ofthe health and safety

inspection ordinances could be remedied if they should

transpire. 4 as >

VL Balancing of the Interests of Public Need and Indi.

. 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

freedom must yield in some cases to the enforcement of rea-

sonable regulations for the public welfare. The individ-

ual’s right of privacy in his home should not give ‘him the

f °

?

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. Sg Mens Oe

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 havé 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.

VII. One Rebel s 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 citigéns to an inva-—

sion of their constitutional rights. If we believed-housing {

inspections to be unconstitutional, we would encourage cifi-

zens to resist! |

It is true that most housing oceupants now welcome the

<_

one,

18

_ a

. ~ .

‘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 immediate prospects of having to spend

time and money to correct 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 conséht?} The records of the city

for the year 1966 show that out of 16,171 calls made where

| a eagrne were at home, entry was refused in 2,540 eases.

~In“the inspections which were made, 4,514 hazardous con-

Sack were noted and called to the attention of the ween

pants. »

One rebel a year,”” says the Prank 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

‘*. gode violation of eyen-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

frightening, possibility.

4

‘

en ee ae we

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 cou fs to pass

.. on this question since this Court’s landmark desision ‘in

Frank 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 8.W. 2d 948 (Mo. 1960) ; Camara v. ‘Municipal

Court, 237 Cal, App. 2d 128, 46 Cal. Reptr.\585 (1965)

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 P2d 262

. (1966). . i AGP oa

~. This brief is not submitted with a desire to weaken 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 atid 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

Se ere) Sg ky eRe OE ere — os ae

4

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4

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be. to cause the préventive 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.

.

Biome M. , MaDIson

eee Florida.

Rosert REESE,

Corporation Counsel, ©

Detroit, Michigan.

Txomas M. O’Connop,

_ City Attorney, .

San Francisco, California.

- Herpeet.C, HorrMan,

City Counselor,

Kansas City, Missouri..

_Joun W. SHOLENBERGER,

City Attorney

Co umbia, So South Carolina. a

Joun J. FLemMiIne

City Attorn

Milwaukee, Fisconsin.

Roger ARNEBERGH,

City Attorney,

las Angeles, ‘California.

(205-4) |

Respectfully subusitted, %

Barnerr I. SHur,

Corporation Cotinsel,

Portland, Maine.

Au ER G. Brown,

City* Attorney, . -

Portland, Oregon.

_Cuaxizs D. StoucH,

City Attorney, .

Lawrence, Eansas.-.

* Dawn Stax,

City Solicitor, ;

Pittsburgh, Benneyivenia.

—_— E. MicHALsxt,

Attorn aoe

alo Alto, alifornia.’

Mbit E. Stmon,

Corporation Counsel,

Chicago, Illinois. -

Marvin J. GLINE,

Corporation Counsel,

Rosemont, Illinois.

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