ON Kilter: Fine line between dissension and anarchy; threat of class action against city

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.

The issue

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 applyThis 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.

Analysis

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.

Why?

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.

Related posts

Dallas Hyland is an opinion columnist. The opinions stated in this article are his and not representative of St. George News.

Email: dhyland@stgnews.com

Twitter: @dallashyland

Copyright St. George News, SaintGeorgeUtah.com LLC, 2013, all rights reserved.

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14 Comments

  • My Evil Twin October 6, 2013 at 12:29 pm

    Mark my words here: All of the hullabaloo in city politics will magically disappear after this election. Until the next election. No matter who wins and who loses.

    • Noise October 6, 2013 at 1:11 pm

      There have always been those who’ve complained about politics in St George, the dictatorship environment of the mayor and council, and the fear of reprisal should you make too much noise. We seem this so-called city “leadership” dictate codes, laws and decisions (i.e. spending of taxpayer funds) without input from or the weighing the opinion of the good citizens of this city. This dictatorship government demonstrates that it is at best unfairly biased. You do not have a democracy in the St George government, where the people have a say; you have an autocratical regime that is defined by the lack of public power to either influence, contest, or participate in the operation of the government, its bureaucracy, and policy implementation.

      • NO_SIX October 6, 2013 at 3:12 pm

        I disagree that the public lacks the power to either influence, contest or participate. We The People do have the power — at the ballot box — but have chosen not to exercise it. Why shouldn’t the mayor feel he has ultimate power ?? He’s been re-elected time-after-time. We must generally approve of how he runs the city. The city government behaves as any bureaucracy does — it will continue to seek to expand its power and authority until called to account, either at the ballot box or by a court.

        • Noise October 7, 2013 at 2:06 pm

          Perhaps if the public was more aware of the mayor’s practices, such as spending taxpayer money without public input, telling volunteers (animal shelter) to keep quiet about shelter practices, the unlawful invasion on private property, his bigoted attitude toward “outsiders”. It’s interesting the city will trespass on your property over weeds, but it allows that run down apartment housing to exist for over a decade (i.e. near 100S 300W). If your radio stations and newspapers would blast him the way they comment about your President, I’m sure attitudes would change. What was the previous comment about reprisal? That is an obvious behavior in St George, the fear of acting out because of reprisal. How many businesses have been pushed out of the city for non-compliance. Where is the truth and full disclosure in reporting for St George without fear of reprisal? It is time for this Autocratic Government to go and allow a true Democracy to exist.

  • .Kris October 6, 2013 at 2:02 pm

    Thank you Dallas, another great read and insight into the corruptness we live. Monday and Tuesday ought to be days to remember in St. George

  • Greg October 6, 2013 at 3:11 pm

    I agree I am so tired of the ignorance of our rights the normal person doesn’t understand and when you put a badge on a man to uphold and protect the constitution and law they figure they have ultimate power
    you can say no get a warrant leave me alone!!! Privacy is a right why live in America if they disreguard all of this!!

  • NO_SIX October 6, 2013 at 3:33 pm

    Dallas — I disagree that the House’s action to de-fund Obamacare is somehow illegitimate. The House has the Constitutional right to initiate spending bills. Where is it written they are somehow obligated to fund everything in the President’s budget or in an enacted law ?

    If Obamacare is settled law, and if there is a proper way to amend it, then why and how does the President keep unilaterally changing it?

    For an interesting and persuasive argument as to why Obamacare is not settled law see:

    http://www.washingtonpost.com/opinions/why-obamacare-isnt-settled/2013/10/03/2c06bf6e-2b71-11e3-8ade-a1f23cda135e_story.html

    • Noise October 7, 2013 at 2:07 pm

      I don’t want to fund oil refineries covered in the GOP budget.

  • Craig October 6, 2013 at 3:45 pm

    Blah…blah…blah….once again, nothing but NOISE and NO examples.

  • Kris October 6, 2013 at 4:15 pm

    Should it be that the code enforcement officer be fired if he was violating the city policies and procedures. As an employee of the city, the code enforcement officer has to obtain the evidence, etc of the violation in a proper manner. If it is in plain view there is no trespassing or violation involved, if they are observing the violation from the neighbors and it is in plain view there is no violation involved. I am really interested to see what kind of evidence was taken and how, especially that there are 3-4,000 people involved.

    I believe that these ordinances and laws are made for a reason and need to be enforced.

    I do not want a neighbor who is going to be stock piling junk, garbage, etc on their property, which under this case would be their right and then there are mice, rats, roaches etc. One day I wake up and find those critters in my house and have to deal with them. Because that neighbor wants to live in those conditions doesn’t mean I have to. I understand we have property rights, but there are those people that these laws have to be made because they don’t think about the affect it will have on others.

    I can just imagine the comments I am going to get and hopefully they will be civil comments, as we all have the right to our opinions.

  • Maggie October 6, 2013 at 4:58 pm

    OMG you people act like this is Chicago. Go look for some real trouble. I moved here from an area packed full of attorneys looking for work. Did some escape and move here?

    • Noise October 7, 2013 at 2:09 pm

      Maggie, if you don’t like it here because people want freedom of expression or the right to voice their complaints, then you should move to a country with a dictatorship. You would be happy?

  • jennifer October 6, 2013 at 11:13 pm

    You are correct if it’s in plain view, but the article clearly states they have gone onto private property. A warrantless search is deemed invalid, it’s the agencies burden to prove it’s a valid search. The officer can ask for consent, if consent is given and not revoked then it’s a good search, but to simply enter someone’s private property with out a warrant to initiate a search goes against the 4th amendment. If they see something unlawful from public property the prudent thing to do would be to call and get a telephonic warrant. We are talking code enforcement, not matters of life and death. This isn’t evidence easily destroyed. It’s most likely over grown weeds, unlawful chickens, and too many pets. Also if it’s in plain view why is a further search needed? Write the citation on what is witnessed from the public property, contact the owner and ask for a consent search, or obtain a warrant. If they were to ask for a consent search and the person was to destroy the evidence before a warrant could be obtained, so what it’s code enforcement not murder the point is to rectify the situation.

  • CJ October 7, 2013 at 11:07 am

    I have watched the cities code enforcement officers walk into my neighbor’s back yard when they weren’t even home. No consent could be given because they weren’t home.

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