Politics

Godfather Takes Aim at Fourth Amendment

Lawsuit alleges Chicago ordinance for warrantless home searches is unconstitutional

A new lawsuit filed by the Goldwater Institute and Chicago-based Liberty Justice Center claims an ordinance levied by Chicago Mayor Rahm Emanuel, that would allow warrantless searches of homes as part of a crackdown on home-sharing, is unconstitutional.

Emanuel signed the 58-page ordinance in June and most of its provisions are set to take effect Nov. 21.

“If you rent your home out on Airbnb or a similar home-sharing platform, Chicago’s ordinance allows city officials to search your home at any time, for any reason, as often as they want — without getting a warrant.”

The ordinance would allow city officials to search people’s homes “at any time and in any manner” without a warrant to deter residents from renting out their homes to visitors through home-sharing platforms like Airbnb. City officials are not required to find reasonable suspicion or probable cause, or even to obtain a warrant, before inspecting people’s homes.

“Two of the worst provisions in this 58-page ordinance deprive homeowners and guests of their privacy rights. First, the ordinance forces home-sharers to give up their constitutional rights against arbitrary searches. Anyone licensed under the ordinance must open his or her home to city inspectors ‘at any time and in any manner,’ as often as city officials desire—without a warrant,” Christina Sandefur, executive vice president of the Goldwater Institute, told LifeZette in an email. Sandefur is an attorney working on the case.

In addition to warrantless searches, another provision of the ordinance would allow city inspectors access to guests’ personal information without a warrant.

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“Another provision requires home-sharers to collect guests’ sensitive personal information — including their names, home addresses, signatures, and dates they visited, and to keep the information for three years — during which time city inspectors can demand the information for any reason they wish without getting a warrant,” said Sandefur. Those who don’t comply could be fined $1,5000 to $3,000 per day.

Both state and federal constitutions, according to Sandefur, forbid the government from searching homes arbitrarily. She pointed out one case recently, City of Los Angeles v. Patel, in which the U.S. Supreme Court struck down a Los Angeles ordinance that forced hotel-keepers to give the police their guests’ private information upon demand.

“Such broad rules, the Court said, create ‘an intolerable risk that searches authorized by it will exceed [legal] limits, or be used as a pretext to harass hotel operators and their guests,'” said Sandefur.

“Any law that provides blanket authorization for the government to invade a home without a warrant in circumstances other than an emergency — e.g., in pursuit of a fleeing felon — seems to me to be unconstitutional,” said John Graebe, Esq., professor of law at the University of New Hampshire School of Law. “I say this without knowing what the law actually provides.” Though Graebe did not review the ordinance, LifeZette relayed the ordinance provisions that allow for warrantless searches.

The Illinois Constitution is “even more protective” than the U.S. Constitution as it not only forbids unreasonable searches but it also protects right to privacy and forbids the government from seizing records and information, according to Sandefur.

“So by forcing home-sharers to allow city inspectors to search their property or demand their guests’ personal information whenever a bureaucrat wants it, Chicago officials are violating these privacy rights in addition to violating private property rights,” Sandefur explained.

The lawsuit is seeking to overturn what it calls Chicago’s “draconian” home-sharing ordinance. Senior Attorney Jacob Huebert at the Liberty Justice Center, in an email, also said the ordinance violates the constitutional rights of homeowners and called it “ill-advised.”

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“If you rent your home out on Airbnb or a similar home-sharing platform, Chicago’s ordinance allows city officials to search your home at any time, for any reason, as often as they want — without getting a warrant. The U.S. Supreme Court has said that the government can’t do this — not in people’s homes, and not in hotels or other places where travelers stay,” said Huebert.

“Chicago’s ordinance also requires home-sharers to keep records of their guests’ personal information —t heir names, addresses, signatures, and the dates they stayed — and allows city officials to inspect those records without a warrant — another practice the Supreme Court has condemned as an unreasonable violation of privacy. So we’re asking the court to block these provisions of the ordinance immediately to protect our clients and their guests,” said Huebert.

“The search warrant rule is one of oldest and most cherished of our constitutional traditions,” said Sandefur. “It’s astonishing that city bureaucrats think they can search people’s homes without a warrant, and without even any suspicion, simply because they allow visitors to stay in their homes.”

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