State Law, the Constitution, and Your Rights!

By Rich Kozlovich

I originally published this on Wednesday, January 24, 2018.  However, in light of the Chevron decision, I think it's worth once again publishing to emphasize the fact Ohio businesses can't be searched in any way without a search warrant based on the Sixth Circuit decision, linked below. 

That was a window of opportunity, that I feared would close before our industry (pest control) could take advantage of it.  They didn't, even at the national association level, and they knew about it because I told them.  Now, after the Chevron decision, that's not just an open window.  It's an open doorway that industry needs to walk through, and done boldly. 

The SCOTUS decision ending the Chevron deference of 1984, which I will address tomorrow, does not obviate enforcement of laws over illegal activity, it obviates bureaucrats ability to decide what's legal without any legislative foundation other than their own opinions, prejudices, and whims, and since these agencies are filled with a substantial number of radical leftists, those whims could be devastating.  

The Sackett family's fight with the EPA is one of the most perfect examples of bureaucratic abuse.  A story that I followed, reported about, and wrote about for over ten years,  and even after winning in court, the EPA bureaucrats still went after them.   Some bureaucrat should have gone to jail for it, and if there ever was a perfect example of why laws regarding qualified immunity need to be revisited, and rewritten, this is it.

Enjoy!

Forty years ago I was working for a construction company who was building what at that time was the largest coal fired power plant in the world, and safety was a major issue. I got to know the people from the Safety Department, which of course dealt with OSHA regulations, all of which I found more than a little interesting, and I kept paying attention to this issue as a result.

Around that time there was a factory in Washington state OSHA wanted to inspect and the company refused stating if they didn’t have a warrant they weren’t coming in. Of course, OSHA went after them in court – but here’s the rub – the company won. The company claimed their biggest problem was to pay for the legal fees.

Around twenty years ago I wanted to do a piece on what I consider violations of the 4th and 5th amendments of the Constitution regarding what seemed to me to be clearly unconstitutional searches by state government agencies. I spent hours looking for the case in Washington state, but I couldn’t find it, so all I’ve said on that is from memory, but that case was the foundation for my thoughts on this issue of illegal search and seizure of legitimate businesses property by overreaching, out of control government agencies.

Yesterday I received a “For Immediate Publication” press release from the 1851 Center for Constitutional Law entitled, Sixth Circuit Victory: State Cannot Inspect Ohioans' Businesses Records Without Warrant.

This started around four years ago dealing with a company dealing in precious metals, which falls under the Precious Metals Dealers Act ("PMDA"). This gave state authorities the “right” to ignore 4th amendment rights, by demanding “all books, forms, records, and all other sources of information with regard to the business shall at all times be available to inspection”. Furthermore, the statute gave the state “free access to the books and papers and other sources of information with regard to the business”, and that information shall “be open to the police upon demand.” They further demand: businesses at the end of the business day are be required to fax business records for that day to the police.”

I don’t know about everyone else, but to me those must be considered, “conveniently worded “writs of assistance”’,  just as were the King of England’s.  Statutes such as the one fought in court in this case couldn’t be considered anything less than “conveniently worded” rights of search and seizure that were extremely broad and general in scope, giving “broad powers” to state agents by any rational definition. Later we will see why that’s important.

Drug dealers, murders, and thieves would have their cases thrown out of court if they were dealt with in this manner, but legitimate businesses apparently have somewhere between less rights and no rights against illegal search and seizure.

Before we discuss the 4th amendment let’s discuss the Bill of Rights.

The Ten Amendments were adopted in 1791 for two reasons, the Constitution, as originally written, really didn’t have individual rights protections, and many in the States felt changes were required to the Constitution to guarantee those protections became rights, and to prevent the federal government from becoming all powerful and forgetting the government was the employee – and the people were the employer.

It was clear the Constitution didn’t address one of the major issues which prompted the Revolution - Search and Seizure by the King’s representatives. The Founding Fathers rightly believed there was no freedom if the government could march into your home and search and seize whatever they found. That principle wasn’t unique to America during the 1700’s. This is a foundational principle in English history as first outlined in 1604 by Sir Edward Coke who said:

“The house of every one is to him as his castle and fortress, as well for his defense against injury and violence as for his repose.

The English government used revenue collection bills to steal as much from the colonists as possible. The colonists resented it and did everything in their power to overcome those laws through smuggling. In short, this became an extortion racket imposed on the American colonists by an all powerful central government.

The Boston Tea Party was not about the tax on tea. The British East India company was going broke, but they had tons of tea rotting on the docks of England, so it was decided to send it to America and sell it cheaply. So cheaply that even with the tax on the tea it would be sold more cheaply than could the smugglers. First, this would save the British East India Company, and secondly, this would get Americans used to paying the tax. John Hancock was the primary instigator of the Boston Tea Party – he was also a major player in the smuggling racket.

So, to overcome this the King decided to create “conveniently worded “writs of assistance”’, which gave his agents broad powers to “enter someone’s property or home with no notice and without any reason. Agents could interrogate anyone about their use of customer goods and force cooperation of any person. These types of searches and seizures became an egregious affront to the people of the colonies.”

That’s one of the things the Revolution was about, as a result the Founders saw the need for a 4th Amendment to prevent the Federal government from imposing the same kind of tyranny as did the British government.

The 4th Amendment: 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.

We also have to understand everything in the Constitution only applied to preventing the Federal government from abusing our rights – it didn’t prevent the states from doing so. The word State didn’t mean “province” in that time frame – it meant an independent nation, and those States had their own Constitutions that allowed for things we would be outraged at today. That changed with the Due Process Clause of the 14th Amendment adopted on July 9, 1868, as one of the Reconstruction Amendments saying:

The 14th Amendment: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The reasoning and actions of the Founding Fathers for a 4th Amendment were sound then, and are sound today, and based on a rock like foundation - the preservation of freedom. When we become uninterested in maintaining those rights we’re adopting a dangerous course to tyranny, which parleys well with the 5th amendment against self-incrimination.

Here’s the information from “the 1851 Center for Constitutional Law took up the case in 2012 on behalf of Liberty Coins, a coin dealer of Delaware, Ohio, and Worthington Jewelers, a retail jeweler in Worthington, Ohio. Each balked at the prospect of losing their business licenses and being fined and prosecuted for refusing to turn over cell phones, laptops, and paper records simply "upon demand" of state enforcement agents.”

According to the press release, the decision of the court is explained as follows:

"Business owners cannot be forced to choose between being arrested on the spot and standing on their Fourth Amendment rights." "[The challenged statutes] are both unnecessary to furthering Ohio's state interest and too broad in scope to withstand facial Fourth Amendment scrutiny . . . both statutes effectively allow searches of dealers' entire businesses . . . They therefore do not provide any standards to guide inspectors in the exercise of their authority to search." "The provisions' seemingly unlimited scope, along with the grant of free access to such information at all times, does not sufficiently constrain the discretion of the inspectors."

"This ruling essentially affirms that while government may request some basic record-keeping, reporting, and inspection of inventory purchased from the public that has been reported stolen, state officials cannot walk into a business without a warrant or evidence of wrong-doing and demand to review our papers, cell phones, laptops, or other business records," said Maurice Thompson, Executive Director of the 1851 Center. "No entrepreneur deserves to be arrested for questioning the authority of a state agent to show up at his business unannounced, without any evidence of wrongdoing, and confiscate or filter through these records."

Maurice Thompson of the 1851 Center for Constitutional Law added, "This precedent will guard warrantless searches of business records in all industries, since the Court of Appeals decision acknowledged that even 'closely regulated' industries are entitled to greater protection. Ohioans should feel free to decline invasive and costly government searches without fear of retaliation."

The pesticide and fertilizer industries of Ohio have had a very good working relationship with the Ohio Department of Agriculture, a relationship other states envy.  We like that relationship, and have no desire to upset it, but decisions are going to have to be made, and those decisions cannot be based on industry policy.  This is no longer a policy issue - it's a matter of law, and it's my belief every trade association for every industry in the nation should embrace this ruling to institute this kind of challenge in every state.

Will this be appealed to the Supreme Court, and if so how will they rule?  I don't know since the Supreme Court has ruled against 4th amendment protections regarding FISA searches, but those are national security issues involving foreign entities.  This is a domestic issue - and I think they would affirm this decision since it's patently obvious these kinds of 4th Amendment violations aren't much different that the extortion racket the King of England imposed on the American colonies. 

It's time to "Drain the Swamp".  We now have a window of opportunity - let's take advantage of if before it closes, maybe forever!