906 F.3d 397
6th Cir.2018Background
- Village of Evendale enacted a property maintenance/building code in December 2016 imposing standards and inspection procedures for rental properties.
- The code requires rental-permit applicants to either allow inspection or sign an affirmation (later amended to permit certification by licensed architect/engineer).
- Building commissioners may inspect if they suspect a violation; if entry is refused they may use “remedies provided by law to secure entry.”
- Plaintiffs Harold Vonderhaar (longtime former councilmember and landlord) and Michael Lemen own rental properties and sued claiming the code permits warrantless searches (Fourth Amendment) and forces affidavits (Fifth Amendment).
- The district court issued a preliminary injunction finding the inspection procedures facially violated the Fourth Amendment; the Village then amended the code to add an explicit warrant provision and alternative certification procedure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to bring facial Fourth Amendment challenge | Vonderhaar/Lemen assert the code authorizes warrantless searches, causing imminent constitutional injury | Evendale says it neither conducts nor intends to conduct warrantless searches and the code requires legal remedies (i.e., warrants); it amended the code to require warrants | Plaintiffs lack Article III standing; no actual or certainly impending Fourth Amendment injury; injunction vacated |
| As-applied Fourth Amendment challenge | Plaintiffs argue they face risk of warrantless inspections of their properties | Village notes it has not conducted unconstitutional warrantless searches and would seek warrants when refused entry | As-applied claim fails: neither plaintiff experienced an illegal search nor faces a realistic threat of one |
| Reliance on tenant fears or past inspections to show injury | Plaintiffs point to tenant fears and commissioner’s prior inspections to show risk | Village shows no history of warrantless constitutional violations; tenant fears are speculative | Tenant fears and prior non-warrantless inspections are speculative and insufficient for pre-enforcement standing |
| Cross-claim standing from Fifth Amendment injury | Plaintiffs contend other asserted harms (e.g., permit affidavit requirement, alleged retaliation) support Fourth Amendment claim | Village argues standing must be shown for each separate constitutional claim | Court rejects crossover standing: each claim requires its own concrete injury; Fifth Amendment allegation does not give Fourth Amendment standing |
Key Cases Cited
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (refusal to allow suit based on highly speculative future injury)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (Article III standing requirements)
- DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (standing must be shown for each claim)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (government enforcement history can show imminence of injury)
- City of Los Angeles v. Patel, 576 U.S. 409 (hotel-owners had standing where mandatory warrantless inspections had occurred)
- Warshak v. United States, 532 F.3d 521 (ripeness/standing where speculative future searches insufficient)
- Platinum Sports Ltd. v. Snyder, 715 F.3d 615 (standing required for facial Fourth Amendment challenges)
- Columbia Basin Apartment Ass’n v. City of Pasco, 268 F.3d 791 (Ninth Circuit case allowing challenge to housing inspection ordinance)