The 8th Circuit Court of Appeals recently ruled in favor of a St. Louis City building inspector holding that he was protected from liability following his search of a home for alleged building code violations.
In Estate of Walker v. Wallace et al., the plaintiffs sued the building inspector, the City of St. Louis and others under 42 U.S.C. § 1983 claiming an unreasonable search of their home in violation of the Fourth Amendment following a police raid of the home.
The City of St. Louis has a program called “Project 87” wherein police notify building inspectors of properties that constitute a “nuisance” under the City’s code. The building inspector’s search was prompted by a “Project 87” request. Under the City’s code, if the owner or occupant of the home refuses an inspection, the building inspector must immediately condemn the building and issue an order to vacate. If the owner or occupant refuses to leave the police must immediately remove the owner or occupant from the premises.
The issue before the Court of Appeals was whether the building inspector was entitled to qualified immunity based on his “Project 87” search of the home.
Under federal law, an individual defendant is entitled to qualified immunity if his or her conduct does not violate clearly established constitutional rights that a reasonable person would have known. To be “clearly established”, preexisting law must make the unlawfulness of the official’s conduct so apparent that the official has “fair and clear warning” that he is violating the Constitution. The Court of Appeals noted that qualified immunity “protects all but the plainly incompetent or those who knowingly violate the law.” Further, qualified immunity is designed to protect officials “who make bad guesses in gray areas and it gives them breathing room to make reasonable but mistaken judgments.”
The plaintiffs had the burden of showing the law was clearly established. The plaintiffs failed to show that the unconstitutional nature of the building inspector’s conduct in obtaining consent to search the home was clearly established to give rise to a § 1983 claim. The Court of Appeals concluded that the building inspector made, at worst, “a bad guess in a gray area of the law.”
This does not mean building inspectors are always entitled to qualified immunity when conducting nuisance based inspections. As the Court of Appeals noted, each case is governed on its own particular facts. Thus, whether a law is “clearly established” must be particularized to the facts of the case so that the unlawfulness of an official’s actions is apparent; context is always a critical component in determining qualified immunity in Fourth Amendment cases, the Court of Appeals explained.
As Walker suggests, there are at a minimum two questions that should be asked before conducting a municipal building or code enforcement search: (1) Is there consent (preferably in writing) from the owner or occupant to search the premises and how clear and unambiguous is the consent?; and (2) If there is no consent, does probable cause exist to conduct the search?