Step Aside, We Are Coming In!

October 11, 2009 8:03 AM

YNML but...I received a letter from my city government demanding entry into my home to inspect our sump pump. I guess they want to ensure that it is not connected to the city sewer system and I guess they are doing this inspection to every house. Now, I am quite certain my sump pump is in compliance and I have done nothing wrong. Still, I am not so ready to just forfeit my 4th amendment rights. My question is, does the city really have a right to do this? Also, is this one of those times where I might be in the right but still have to spend 1000s of dollars on legal fees just to defend my right against unreasonable search?!
posted by Ennui to law & government (19 comments total)

My question is, does the city really have a right to do this?

I don't know where you are located, but without going into too much detail, some friends of mine were in the same situation. The city did not have the right to enter their house.

The city did have the right to turn off the city water supply to said house pending satisfactory inspection of the sump pump.

So you may not have to let them in, but they may not have to let you use the water/sewer system until you do.
posted by FishBike at 8:15 AM on October 11, 2009 [1 favorite]

IANAL and I don't know where you live...but I think the Fourth Amendment covers searches & seizures that lead to criminal prosecutions. I doubt that even if your sump pump is connected to the city sewer system, that's not a crime. Also, if you refuse and try to make a big case about it, they could always just get a warrant. I'd just let them come in and look at my sump pump.

IF, however, you think this is a ploy, if you've been harassed in the past by the city, or if you think they've been trying to catch you at something else...find a civil rights lawyer.
posted by motsque at 8:37 AM on October 11, 2009

motsque's advice is generally good, but I think it fails for certain values of 'something else.' If you're worried about a city employee finding your grow op or meth lab or something, a civil rights lawyer will probably not be able to help you.
posted by box at 8:43 AM on October 11, 2009

Ahh, thanks box. I meant "something else" like you've been protesting a tax hike at city council meetings and they're trying everything to nail you on something to get you to shut up. Clearly, if you have anything you need to hide...get a criminal defense lawyer instead!
posted by motsque at 8:45 AM on October 11, 2009

Still, I am not so ready to just forfeit my 4th amendment rights.

Also, is this one of those times where I might be in the right but still have to spend 1000s of dollars on legal fees just to defend my right against unreasonable search?!

This is not a Fourth Amendment issue, any more than health inspectors being allowed to inspect restaurants is a Fourth Amendment issue.

There are some things we don't enjoy letting government do, that we nonetheless need to let government do. This is essentially a public health inspection and it would be petty and small to fight it.
posted by jayder at 9:01 AM on October 11, 2009

I cannot speak to the legalities of the situation, but I find myself strongly disagreeing with jayder. Your house is not a restaurant. If they don't have any reason to suspect that you, personally, are doing something negatively affecting the health of others with your sump pump, they should not be allowed in your home. Government officials shouldn't get an inspect-on-a-whim-free card.

Mulling this over, I would probably allow the officials to inspect. I would invite over as many friends as I could, and we would follow the inspector around my property. No negativity or harassment, just the perfectly normal presence of my friends at my house and the unwelcome presence of Government Individual on my property.

Although, OP, I should moderate this comment by saying that if you do "have something to hide", that's an entirely different problem that you should definitely address as fast as you possibly can.
posted by Phyltre at 9:14 AM on October 11, 2009 [1 favorite]

You're making a big deal out of nothing.. They are trying to maintain an expensive infrastructure, what they are looking for is a common problem..... (as is hooking up water softeners to the sewer system...)

Let them do the inspection...
posted by HuronBob at 10:12 AM on October 11, 2009

The situation, as you've described it, is not a Fourth Amendment issue. No point spending money on a lawyer or wasting taxpayer funds posturing over it.
posted by applemeat at 10:26 AM on October 11, 2009

what fishbike says.
posted by rmd1023 at 10:40 AM on October 11, 2009

IAAL, but IANYL. TINLA. (Both self-links to definitions.)

I recalled a case about something like this from law school, lo, these many years ago. You may be interested to read Camara vs. Municipal Court of San Francisco. I haven't chased down subsequent case history, and I do not know where you are located, so there may be state or local ordinances that affect your situation. For example, as FishBike notes, maybe they can turn off your water, or maybe they can turn it off, then charge you $MANY to turn it back on.

Personally, I wouldn't beef with the city over this. There are dozens of civil incursions that are, IMHO, more worthy of dispute. I sympathize that it's not often one gets the chance to fight about any of them, and all the fights are tedious, difficult, expensive, and fraught with peril that the courts will come down on the wrong side of the line (not to mention the fact that you'll be mocked mercilessly for your inane commitment to the absurd idea that the government's powers are limited and do not extend to things that are specifically forbidden in the Constitution).

Good luck if you decide to make a stink!
posted by spacewrench at 10:43 AM on October 11, 2009

Roughly parallel situation I've been in. Not exactly your situation, but there are some similarities:

Earlier this year, I started getting "we need to inspect your gas meter notices". Ignored them.

Then I started getting notices like "We need to inspect your gas meter. This is mandated by federal legislation blah, blah, blah, and if we don't get an appointment to inspect your gas meter, we'll get a warrant, bust down the door, and inspect the meter anyway."

Okay, you have my attention. I was going to have some out-of-town trips coming up, and I didn't want to come home to a boarded-up door and yellow police tape. So I made the appointment.

On the other hand, I was actually slightly paranoid about the notice--I looked up the company that was sending out the inspector to make sure they actually existed, and so on. I figured if nothing else, I could watch the guy's behavior when he showed up, take down plate numbers off the truck in case it turned out to be some kind of scam.

So the guy shows up on appointment day. Really nice guy, subcontracting for the gas company. He inspects all around the old gas meter for leaks. Everything's okay. I asked him why we were going through all this. He kind of laughed and said that the federal regs were on the books, the gas company was required to do these inspections on anyone with a meter inside the house, and the gas company was years behind on the inspections, hence the stern tone in the note. Which is also why they were using an outside contractor, since they didn't have enough people on payroll to get caught up with.

Actually busting into a house? He said theoretically they could do it, but it was unlikely unless it was an abandoned property. They had their hands full with the workload as it was.
posted by gimonca at 12:00 PM on October 11, 2009

IANAL. I agree with other posters that you should assess how much time, energy and money you want to spend fighting this. I don't know where you're located, but there are at least two Minnesota cases on point:

In Plisner v. Sweeney, plaintiff Plisner alleged that the city violated his civil rights when they added a surcharge to his water/sewer bill after he refused to allow city agents to inspect his property. The city ordinance in question required property owners to allow “authorized city employees/agents” to conduct inspections to confirm that sump pumps were not discharging into the sewer system. The ordinance also provided that anybody who refused inspection would immediately be subject to a surcharge on their sewer bill. The Plisner court held that the city violated Plisner’s Fourth Amendment rights in assessing the surcharge. (Plisner was a former licensed attorney and represented himself, so no attorney's fees there.)

This case was distinguished from Yanke v. City of Delano, where the court held that a city ordinance requiring property owners who used the municipal sewer system to have their plumbing inspected did not violate the Fourth Amendment, because it allowed for inspection by city or licensed plumbers. I couldn't find a free online source for this case, but I can email the case to you if you like.

If you choose to pursue this, I would start by reading the city ordinance that outlines the inspection requirement. Does it provide that the inspection must be performed by city employees/agents? What are the provisions regarding property owners who do not comply with the inspection? Does it permit you to hire your own plumber to provide an inspection report and, if so, would that satisfy you?
posted by Majorita at 12:14 PM on October 11, 2009 [1 favorite]

Somewhat analogous situation... I once worked for an assessing department and my job included inspecting residential and commercial property for the purposes of appraising it. Our right to inspect was limited to aspects of the property that affect value, e.g., BR/BAs, square feet, condition, etc. Our interest was in doing our mandated work, and so the department's convention was that we literally could not see other stuff: grow operations, abused children/pets, non-licensed businesses, etc were treated as invisible and ignored. None of us cared about the criminal and licensing matters, but in practice, some of us developed quiet contacts with the applicable agencies that dealt with abuse matters. The sump pump people may have similar conventions and practices.
posted by carmicha at 3:08 PM on October 11, 2009

IANAL, But I am a Engineer for small City. This is a most likely a public works issue and this is required to maintain a storm water discharge permit, or they have been getting some really weird stuff in the sewer treatment plant. Either way, they best bet is to go down to city hall and ask (nicely) to speak to a engineer in the public works department about what is going on. At my city the city council has made it very clear that our chief priority is responding to citizens request as completely and quickly as possible. I highly doubt this is a back door way of getting someone in your house to look for anything other than an unauthorized connection to either the storm drain or the city sewer (depending on what the actual problem is they are trying to fix). It there is a problem the city inspector (who is probably too busy to ask or care about your grow op or gun collection or home business)will just tell you to fix it and probably how if he/she has time.
posted by bartonlong at 3:46 PM on October 11, 2009

Your cause is a noble one, but this is the wrong battlefield. Let 'em inspect the pump.
posted by Chocolate Pickle at 4:28 PM on October 11, 2009

I am a lawyer, but definitely not yours. I laughed out loud when you mentioned the 4th Amendment. As previously posted, the 4th Amendment applies only to criminal cases and doesn't apply in your situation.

Just relax and call whatever agency sent you this notice to ask them why/how/when, etc. As much as I'd like to drum up business for another atty, you will be wasting your money by hiring a lawyer to "fight" city hall.
posted by calgirl13 at 5:49 PM on October 11, 2009

I am also not a lawyer, and at first, I was on your side.

However, I then went and read the text:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Unfortunately, that seems like a completely reasonable search.

(Also, not sure I completely agree with the idea that the 4th is only about criminal matters. That would seem like a huge hole in the law. It doesn't say anything about "unless we promise not to throw you in jail" in there. Posting a water matron in each house to watch for improper water usage and scold abusers would certainly not be criminal, but it would be unreasonable.)
posted by gjc at 9:50 PM on October 11, 2009

My city went through this issue, more or less, while planning a reassessment. The city wanted to have the assessors report code violations and things like unpermitted electrical work. After much discussion, the city council ordered that they could only enter the houses to do a value assessment. No court ruling, of course, but they did feel that the Fourth Amendment applied at least in spirit.

That said, especially since you're sure your pump will pass inspection, let 'em in. They just want to make sure that there isn't a jury-rig somewhere like the one that had people drinking sewage water because some contractor picked the wrong pipe to stick a T on.
posted by dhartung at 1:51 AM on October 12, 2009

I don't have anything to add on topic.

I just wanted to say thank you for standing up to protect your rights even though you're not hiding anything. I just heard my two best friends last night say, "I don't care if the goverment spys on me, I have nothing to hide" and it blew me away. That is NOT the stance we need to have.

Thank you, Steve.
posted by phritosan at 8:24 AM on October 12, 2009