One of Monday’s decisions was about when the Fourth Amendment permits facial challenges. This seemingly abstract issue has significant implications for policing of the drug trade, human trafficking, and other forms of crime that rely on hotels.
At issue in Los Angeles v. Patel was a municipal ordinance instructing hotel operators to keep records of certain information about their guests: name, address, vehicle information, identification, and information about the guest’s stay. All of this information was to be made available for inspection upon request by law enforcement. The Supreme Court struck down LA’s ordinance as facially unconstitutional in a 5-4 decision. Justice Sotomayor wrote for the majority, joined by Justices Kennedy, Ginsburg, Breyer, and Kagan. Justice Scalia dissented, joined by the Chief and Justice Thomas. Justice Alito wrote a separate dissent, also joined by Justice Thomas.
The case began when a group of motel operators sued Los Angeles under the Fourth Amendment, alleging that the statute facially violated the Fourth Amendment because it required record inspections without consent or a warrant. The trial court held (and the Ninth Circuit initially affirmed) that the hotels lacked a reasonable expectation of privacy in the records. The en banc Ninth Circuit reversed on the grounds that the inspection statute was facially unconstitutional because the authorized searches were unreasonable. The Supreme Court ultimately affirmed the Ninth Circuit’s en banc opinion, holding that the ordinance had to provide an opportunity for pre-inspection judicial review (if the owner desired it).
The meat of the Court’s opinion is about the status of facial challenges under the Fourth Amendment. For a variety of reasons, courts typically prefer case-by-case adjudication of Fourth Amendment claims. Chief Justice Earl Warren (no cheerleader for law enforcement) articulated one of these reasons in Sibron v. New York (1968), writing that facial challenges to ordinances are an “abstract and unproductive exercise” of trying to match up the legal standards of some random municipal ordinance with Fourth Amendment categories to see if they are compatible. Such a case, he wrote, “is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.” Justice Sotomayor works hard to recast Sibron and other cases as friendly to facial challenges under the Fourth Amendment (no easy task), then turns to a reasonableness analysis.
In this place, one would typically expect the Court to apply the “administrative search” doctrine which is a form of “special needs” search that doesn’t require a warrant. These types of searches often happens at airport checkpoints or, say, in OSHA inspections. But the Court rejects the administrative search doctrine, concluding that reasonableness requires that “the subject of the search [] be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” This effectively means that law enforcement officers who want to inspect a hotel’s registry must obtain and serve an administrative subpoena on the manager, who then has the opportunity to seek judicial review before inspection. The ordinance penalizes noncompliance and doesn’t create such a procedure so the Court declared the ordinance to be facially unconstitutional.
The two dissents demonstrate the unique roles that their authors play on the Court. Justice Scalia’s dissent is heavy on originalist analysis and surprisingly well-informed about the real-world crimes that hotel register inspections are designed to deter: “drug dealing,” “prostitution,” and “human trafficking.” As Justice Scalia points out, a group of San Diego motel owners was indicted for carrying on a joint prostitution operation with a street gang. “The warrantless inspection requirement,” he wrote, “provides a necessary incentive for motels to maintain their registers thoroughly and accurately: They never know when law enforcement might drop by to inspect.”
Likewise, Justice Alito’s dissent calls the majority opinion’s legal reasoning “befuddling” and lists several searches that the ordinance could have been executed “reasonably,” had it not been declared unconstitutional in its entirety.
There are some other dubious moves. First, Justice Sotomayor thinks the Supreme Court’s abortion distortion of ordinary legal standards is so awesome that it should apply to the Fourth Amendment, too! She quotes from the, um, distinctive standard for facial challenges articulated in Planned Parenthood v. Casey (1992) (citations omitted):
Those defending the statute [in Casey] argued that facial relief was inappropriate because most women voluntarily notify their husbands about a planned abortion and for them the law would not impose an undue burden. The Court rejected this argument, explaining: The “[l]egislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. . . . The proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.”
(One wonders what Justice Sandra Day O’Connor – author of the quote from Casey and a justice very protective of law enforcement – thinks of Justice Sotomayor’s application of Casey to this context.)
But several dissenters in Casey pointed out – as several more do here – that the Court’s prior cases require the challenger to show that “no set of circumstances exists under which the [provision] would be valid.” Justice Scalia points out:
Article III limits our jurisdiction to “Cases” and “Controversies.” Accordingly, “[f]ederal courts may not ‘decide questions that cannot affect the rights of litigants in the case before them’ or give ‘opinion[s] advising what the law would be upon a hypothetical state of facts.’” To be sure, the reasoning of a decision may suggest that there is no permissible application of a particular statute, and under the doctrine of stare decisis, this reasoning—to the extent that it is necessary to the holding—will be binding in all future cases. But in this sense, the facial invalidation of a statute is a logical consequence of the Court’s opinion, not the immediate effect of its judgment. Although we have at times described our holdings as invalidating a law, it is always the application of a law, rather than the law itself, that is before us.
The upshot is that the effect of a given case is a function not of the plaintiff ’s characterization of his challenge, but the narrowness or breadth of the ground that the Court relies upon in disposing of it. If a plaintiff elects not to present any case-specific facts in support of a claim that a law is unconstitutional—as is the case here—he will limit the grounds on which a Court may find for him to highly abstract rules that would have broad application in future cases. The decision to do this might be a poor strategic move, especially in a Fourth Amendment case, where the reasonableness of a search is a highly factbound question and general, abstract rules are hard to come by. But even had the plaintiffs in this case presented voluminous facts in a self-styled as-applied challenge, nothing would force this Court to rely upon those facts rather than the broader principle that the Court has chosen to rely upon. I see no reason why a plaintiff ’s self-description of his challenge as facial would provide an independent reason to reject it unless we were to delegate to litigants our duty to say what the law is.
Second, in rejecting Justice Scalia’s contention that inns qualify as “pervasively regulated” industries that are subject to lower standards for their own privacy, the Court waves away centuries of precedent that tolerate more invasive regulation for innkeepers than for other business, including practices commonplace at the time of the adoption of the Fourth Amendment.
Third, the Court’s reasonableness analysis totally ignores the many ways that state and municipal policing involves more than just investigation of crimes. States and local law enforcement agencies typically have many public welfare-related responsibilities beyond just criminal investigation: emergency calls, patrols, missing person canvassing, welfare checks, and the like. These responsibilities significantly alter the context for any particular search, which is why proceeding under a facial challenge is generally a bad idea under the Fourth Amendment.
The immediate practical effect of the Court’s decision, I suspect, will be to encourage litigation by the defense bar and activist groups. Numerous states and municipalities have ordinances of this sort. In addition, several activist groups have set their sights on the laws governing electronic search and seizure (such as the Electronic Communications Privacy Act). Justice Sotomayor has just opened the impact litigation doors wider. Buckle up!