ON Kilter: If enforcement tactics were unconstitutional, what then for the enforcers?

OPINION – This week, St. George Attorney Aaron Prisbrey met with the officials of the City of St. George to discuss a possible resolution and forego a federal class-action lawsuit he is ready to file for what could be thousands of Fourth Amendment violations by the code enforcement department.

At present, it appears the city is willing to consider Prisbrey’s stipulations which include revision of the unconstitutional portions of the city code and compensatory damages to those people unlawfully subjected to illegal searches and subsequent fines.

What should be noted here, is that Prisbrey has said that if the city does capitulate to these terms, he will forego pursuing punitive damages that would otherwise be sought through litigation. This speaks volumes to not only the legitimacy of the claim, but to the motive of the lawsuit: justice.

Let that sink in.

An attorney, who has spent most of his career as a trial and a personal injury lawyer is apparently compelled so much by the rightness of this cause, is foregoing a paycheck for the work.

What should also be noted here is what could be considered a critical development in this potential lawsuit, that being: a separate but related hearing which took place on Monday. Prisbrey’s principal client in his proposed class-action lawsuit, Jeff Rowley, was appearing before Administrative Law Judge Brian Filter on a motion to suppress evidence gathered against Rowley by the city ordinance department in an action the city has brought against him.

It was asserted by Prisbrey that the the evidence, in this case a photograph taken, in the administrative action was obtained in direct violation of his client’s Fourth Amendment rights. Filter ruled that the execution of the search in enforcement of the ordinance was in fact unconstitutional and the photograph was excluded from evidence in the city’s action.

This ruling, in and of itself, suggests the provision in the ordinance which allows such illegal searches may also be unconstitutional.

And the ordinance has a broader implication as well, that being the semblance of illegal spying on behalf of government for purposes unknown. In this case, the purpose of the illegal spying is said to be to enforce the ordinances.

One of many problems with this assertion, however, is the selective enforcement of these ordinances as well as the illegal execution of searches in pursuit of violations and enforcement.

And this is where that curious notion of justice comes into the equation.

If, for the sake of argument, two citizens or business owners are similarly situated but are treated differently under the same laws or ordinances, what arises is a blatant demonstration of unconstitutionality. Simply put, it is not fair for justice to be to the advantage of the strong, or elected.

And the question that naturally arises next of course is: Was this selective and illegal enforcement perpetrated for the purpose of power or gain. Perhaps it is both.

Either way, it is wrong and a reckoning appears to be what is at the heart of Prisbrey’s threatened lawsuit.

But to truly attain justice here, does it not stand to reason that (a) in addition to a repeal of illegal ordinance provisions, (b) in addition to compensatory damages to those wrongly searched and fined, then (c) there should be accountability in the form of penalty or punishment for those responsible for the offenses?

This might include not only the officers, who should have known better, but those responsible for writing and enforcing the laws in the first place – some of who, it is fairly noted,  have preceded those currently in power.

It is painfully belaboring the obvious that the absence of some accountability is tantamount to allowing a crime to go unpunished simply because the convicted apologized and promises not to do it again.

It is the responsibility of the engaged citizen to consider these things not only in terms of who to perhaps elect or “unelect” in this year’s mayoral and City Council races, but also to hold those responsible to some level of accountability and send a clear message from the citizens to our government here locally that this, and anything like it, will not be tolerated here anymore.

Think about it.

See you out there.

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

Email: dallas@stgnews.com or dhyland@stgnews.com

Twitter: @dallashyland

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

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3 Comments

  • Don Thomas October 11, 2013 at 11:42 am

    I believe that what you are saying, Dallas, makes sense, on the face of it. However, I think this is one of these things that needs a lot of consideration for consequences that are not intended here.
    Let’s look at the bigger picture for a moment. Court decisions regarding fourth amendment rights are in a fairly constant state of flux. Because even the courts are unable to reach an agreement on what is and what is not constitutional.
    It seems that you are advocating that every officer who was doing their job, whether or not with “fear or favor” or “malice” (perceived or real,) needs to be “punished.” But if the officer is doing the job he is directed to do, how can you punish him? If every law enforcement officer is left to make the determination if a particular law is constitutional or not, there will be a combination of bedlam and anarchy. When even the courts can’t make a decision and have their peers agree and stick with it, just how is an individual officer supposed to be able to do this? Particularly when the situation happens to become highly charged with anger and emotion!
    There are remedy’s that are afforded through tort action against government bodies that abuse power. But when you are talking about punishing an officer, (whether it is a code enforcement officer, or a peace officer,) for upholding the current laws, you are opening a Pandora’s Box that would be best left closed.
    Understand that I am not referring to holding a particular officer accountable for going overboard, and “becoming a uniformed bully.” When that happens, the individual officer and his agency should be held accountable. I am however, concerned that what you are proposing is the punishment of a guy, or gal, who happens to be doing their job, to the best of their abilities.
    One of the reason that government agencies employ attorneys is to review the codes and ordinances made by the governing bodies, for compliance with the constitution and other existing laws. These are the folks who need to be held accountable if they allow ordinances to be put into effect that are against the constitution or higher law. That is why they get the “big bucks.”

  • V October 11, 2013 at 11:56 am

    It should be noted that just because Mr. Prisbry is trying settle this case instead of going to trial does not mean that he will not receive compensation. Attorneys get paid if they settle a law suit as well as if they go to trial. Trials are very expensive and those cost eat up the potential award a plaintiff might recieve.
    Also, to say that the code enforcers should be punished for enforcing an unconstitutional code is like saying police officers during the prohibition should have been prosecuted for enforcing the 18th amendment. In both cases they were just doing the job they were tasked to do under the current law. Our laws are ever changing, our Constitution is ever changing. In fact many rights once guaranteed under The Constitution have been infringed upon into non-existence. Your type if accountability sounds more like a public lynching and less like justice. Our law makers are imperfect and therefore create imperfect laws. What you should be asking is why was this not brought to light before now? The code as been on the books since 2003!

  • NO_SIX October 12, 2013 at 10:24 am

    There are considerable (and hopefully honest) disagreements as to whether laws, ordinances and regulations are constitutional or not. How many Supreme Court decisions are five to four ?

    Punishing law makers for enacting laws later determined to be unconstitutional is a sure way to discourage people from running for public office and enacting laws — maybe that’s a good thing.

    While “I was only following orders” is not always a valid defense, there surely must be some limit on how much we expect enforcers to second guess law makers and their legal advisers.

    If laws are enacted with malicious intent then perhaps injured parties have some basis for civil action. Or the voters can mete out justice.

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