OPINION – It is time for the ideologies of the leadership in this community to be reflected in their policies and enforcement thereof, and most importantly, to be consistent with the Constitution.
On Sept. 27, St. George attorney Aaron Prisbrey sent a letter to St. George City attorney Shawn Guzman advising him of the intent to file a federal lawsuit on behalf of his client and others affected by continuous and egregious Fourth Amendment violations by city code enforcement officers, namely, warrantless searches of citizen properties.
The City’s code enforcement ordinances include the following provision on which it claims its authority to inspect property:
The ACE (Administrative Code Enforcement) administrator or any enforcement official is authorized to enter upon any property or premises to ascertain whether the provisions of this code or applicable state codes are being obeyed and to make any examinations and surveys as may be necessary in the performance of the enforcement duties. This may include the taking of photographs, samples, or other physical evidence. All inspections, entries, examinations, and surveys shall be done in a reasonable manner based upon cause. If the responsible person refuses to allow the ACE administrator or enforcement official to enter the property, the ACE administrator or enforcement official shall obtain a search warrant.
A copy of Prisbrey’s Septenber 27 letter is attached here: Prisbrey letter to St. George City Attorney Sept. 27, 2013
The threatened lawsuit comes in light of the current city statute; the code enforcement division’s argument has been that it will not conduct searches if told by the property owner to leave.
But this is not a proper application of law. Civil rights under the Constitution are assumed, they do not have to be asserted in order for the constitutional rights to apply. This is to say that a citizen does not have to tell an officer to observe their rights in order for the officer to be required by law to do so. This should be obvious.
The operative word here being obvious. Apparently, the city does not think so.
At present, according to records obtained from the city by Prisbrey, he said that it has been ascertained that the officers conducted warrantless searches on private property some 3,600 times in the last five years. At present, there is ample evidence to proceed with the lawsuit, Prisbrey said, and he intends to do so unless some kind of resolution can be reached.
In an October 3 letter to the St. George City Attorney’s office, Prisbrey offered to discuss with the city a possible remedy and resolution before going forth with the lawsuit. This is to say that at present, Prisbrey is willing to listen to what the city has to say and was willing to defer filing the lawsuit to allow for discussions on certain conditions.
A copy of Prisbrey’s October 3 letter is attached here: Prisbrey letter to St. George City Attorney Oct. 3, 2013
Late Thursday, the city did ask Prisbrey to hold off on filing the suit until Tuesday, suggesting that a repeal of the ordinance was on the table. The city representatives said they will only discuss the illegal search and seizures. Nothing more.
Prisbrey said he responded offering his own conditions that the repeal, as well as accountability and compensatory damages be discussed.
On Friday, Prisbrey said the city first agreed late in the afternoon to acceptable meet and discuss terms, with a proposed meeting for Tuesday. Later in the afternoon, he said the city recanted those conditional terms but remained willing to meet and discuss the issues on Tuesday. In other words, the city made no promises as it first did to conform the existing code to one that is defensible under the Constitution and to remedy fines and other damages suffered by Prisbrey’s proposed class action plaintiffs.
I spoke to Assistant City Manager Marc Mortenson Friday morning and he said he had just been made aware of the pending lawsuit Thursday night. He said he was not prepared to comment on the matter.
Nonetheless, it is looking very much like the city could be facing the filing of a federal class action suit right in the final weeks of an election cycle.
It is worth noting, that in an election cycle in which all candidates in the race seem determined to name “transparency” and “accountability” as staples of their campaign platforms, the actionable evidence of this is to the contrary.
Let’s look at another example, the animal shelter investigation for instance: The overall mentality seems to be one of urging the citizens to put it behind them and look to the positive future – not abide the wishes of the citizens for an unbiased outside investigation (one that Jon Pike alone openly supports). In what world does this equate to justice under the laws of our land? Since when is a government’s response of “oops, we screwed up but we’ll do better in the future” acceptable remedy for the screwup in the first place?
Can you imagine telling a police officer who stopped you for speeding, “Listen, I know I was speeding but I am a good person who has done a lot of good things. Can we just put this behind us and I won’t speed ever again?” It’s unlikely he would agree and I would posit that many have tried this tactic.
The fact of the matter is that offenses remain unfinished until there is accountability and justice.
In the case of those injured by unconstitutional warrantless searches at hand, the arguments seem to be that the rights of others to rules of aesthetics and neighboring property values mitigate the egregious code enforcement.
Those neighboring rights are understandable but they don’t justify improper processes that essentially force the offending neighbor to relinquish his or her birthright as an American citizen.
That birthright, in this case, being offered in the Fourth Amendment to the Constitution:
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.
It is those people, I would assert, whom Ben Franklin referred to when he said those who would sacrifice liberty for security deserve neither.
In his recent St. George News Perspectives column, Bryan Hyde put it rather succinctly when he wrote: “In reality, we are being ruled by a thoroughly corrupted cabal of political opportunists who stake their claim to power on the perverted concept of majority rule.”
He was speaking on the idea of anarchy, or more acutely on the notion that dissent is the highest form of patriotism.
When the government perverts the intent of the Constitution, it is up to the people to realign it by way of incentive or force if need be.
This is what is said to be at the heart of the Republican party’s standoff in Washington that presently has our government shut down.
If a correlation could be drawn between a national and local event, these two might be apropos for discussion.
You see, at some point the city made these ordinances legal. They used a process of law to write the laws, pass them, and enforce them however unnoticed and unopposed they somehow managed to be.
It is confounding to the intelligent mind that leaders of this city so staunch in their profession of love for the Constitution and the rule of law would pass such egregious perversions thereof, but they did.
And now, an attorney is using the process of law to, in essence, force them to repeal or reform the ordinance, make compensation to those offended by it, and face penalties.
This, and also to right the course of governance over the citizens of St. George.
The Republican party could take a lesson from our city and its people in that what you see here is a band of people, who know the ordinances are unconstitutional, nonetheless abiding the laws until they can change them. They are not refusing to participate (as if they could), and they are not operating from the weak position of obstinate defiance for its own namesake.
Because it simply does not work. It is unbecoming the great nature of the American citizen. We do not stoop to their level.
The ordinances, by way of threat of lawsuit or actual lawsuit, will likely be repealed or reformed and constitutional order restored.
The Affordable Care Act was a Bill passed by Congress, adjudicated by the Supreme Court, and signed into law by the president.
If, as some people assert, it was somehow an aberration of law, then there is a right process for amending that.
Holding the American government hostage to that agenda is not that process, it is tantamount to childish and terroristic behavior and is indicative of much more than those perpetrating it upon the American people are conceiving of at present.
It will cost them greatly.
And, on the slim chance they succeed in these tactics, will set a precedent in the land the American people will suffer from again and again.
Dissension is a pure form of patriotism but there is a fine line to be drawn between it and anarchy.
And anarchy only sounds good on paper.
See you out there.
- Perspectives: Anarchy is looking better all the time
- Letter to the Editor: St. George fear squad bullies meet Citizens Against Incumbent Tyrannical Servants
- Bad medicine: Shelter report shadowed by questions
Dallas Hyland is an opinion columnist. The opinions stated in this article are his and not representative of St. George News.
Copyright St. George News, SaintGeorgeUtah.com LLC, 2013, all rights reserved.