City Inspectors Must Stay out of Your Bedroom, for Now
People expect privacy in their homes, regardless of whether they rent or own. Even friends wait for permission to enter. But the rules work differently for government officials in Zion, an Illinois city near the Wisconsin state line.
Inspectors can show up unannounced without a warrant and demand access to kitchens, bathrooms and bedrooms of any rental unit. Not even mothers-in-law can get away with so much snooping.
Unfortunately, city inspectors gave Josefina Lozano only two options when they came calling at her tenants’ homes in the well-maintained multifamily building that she ran. She could betray the trust of her tenants and expose them to a government intrusion, or she could turn the inspectors away and pay $750 daily fines.
Neither option sat well with Lozano, an immigrant from Mexico who has owned a real estate investment business for nearly 40 years. Rather than submit to the discriminatory inspection regime — which treats all renters like criminals — Lozano and three of her tenants fought back.
With representation from our public interest law firm, the Institute for Justice, they filed a lawsuit against the city in 2019. Nearly two years later on Sept. 23, 2021, they scored a first-round victory when the U.S. District Court for the Northern District of Illinois denied Zion’s motion to dismiss the case.
In its attempt to kill the lawsuit, Zion sidestepped the constitutional problems with its ordinance. Instead, city attorneys argued that Lozano’s tenants lack standing to sue because the threatened searches have not yet occurred. Essentially, the city argued that residents must wait until the damage is done before they can seek a remedy.
The federal judge overseeing the case was not swayed. “Even if the City has yet to issue a fine or penalty, there is a ‘substantial risk’ of the injury occurring in the near term,” he wrote.
Lozano and her tenants now look forward to trial, where they can get to the substance of their complaint. Put simply, the Fourth Amendment promises protection against “unreasonable searches,” and the rules do not change for tenants and landlords.
The Constitution applies to everyone — even in Zion, where city planners have declared renting a public scourge. One former mayor made his position clear when he blamed the city’s poor financial situation on the high percentage of rental properties. The result was the rental inspection ordinance, adopted in 2015.
Other cities have tried similar tactics to run renters out of town. The Institute for Justice challenged one rental inspection ordinance in Park Forest, another Illinois community about 80 miles south of Zion.
But the 1995 case never made it to trial. The village backed down after it suffered a major blow in federal court — similar to the recent ruling against Zion.
Tenants also have fought rental inspection ordinances in Arizona, Georgia, Iowa, Minnesota, Pennsylvania and Washington. The government’s appetite for warrantless searches points to a nationwide problem, as the Fourth Amendment increasingly comes under attack.
Many warrantless searches happen during criminal investigations. In their zeal to catch crooks, the police test the limits of how far they can go without getting judicial signoff. Digital technology increases their options.
The 7th U.S. Circuit Court of Appeals in Chicago warned about the trend in a recent ruling involving hidden cameras outside a drug dealer’s home east of Springfield. As the judges explained, “millions of unblinking eyes” soon will allow “near-perfect surveillance without the need for physical touch.”
Meanwhile, government regulators have pushed the boundaries in the civil realm. Already, businesses in any “closely regulated” industry must allow warrantless inspections. As regulations have increased nationwide, so have the number of industries affected.
For Chicago food truck owners, the expansion of government oversight meant that the city could force them to install GPS tracking devices on their vehicles to broadcast their every move in 2012.
Rental inspection ordinances bring the issue home for normal, law-abiding citizens. People like Lozano and her tenants don’t ask for much. They just want protection from uninvited guests. Policymakers should have to knock and wait for permission to enter, just like everyone else.
Robert Peccola is an attorney and Daryl James is a writer at the Institute for Justice in Arlington, Virginia.