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WND Exclusive Commentary
the 4th Amendment
with a civil-suit sneak

By Richard W. Stevens
© 2000

The repeating "ding-dong" insists that someone is at the front door. Not expecting any visitors at 9 a.m. Sunday morning, you leave the chain latched as you open a crack to peer out. Three men in business suits carrying brief cases smile thinly as you ask, "What is it?"

"We're here to search your home for evidence."

"Are you the police?"

"No, we're attorneys for your employer. Please let us in."

"Do you have a warrant?"

"No, we have a court order. We don't need a warrant because your dispute with the employer is a civil matter. May we come in now?"

"It's Sunday morning! What if I refuse?"

"You might lose your lawsuit and face charges of contempt of court. You could be fined, too. It won't take long; shall we get started now?"

Could such a scenario actually take place? Unless the higher courts act decisively to protect individual rights, the answer is "yes ... probably tomorrow."

Warrantless Search of Private Property
News sources report that at the end of January, Northwest Airlines (NWA) had begun searches of the home computers of up to 20 flight attendants. A federal court authorized the searches as part of "civil discovery" in a labor dispute. NWA was allowed to download the contents of personal computer hard drives to look for private e-mail and other evidence which might show the employees helped to organize a "sickout" at the airline over the New Year's holiday.

Legal tactics in labor disputes usually interest few people outside of the players, but this recent ruling should worry all Americans. A federal court has allowed a private party to do what the government is forbidden to do: search private property without a warrant.

Under the Fourth Amendment to the United States Constitution, individuals have a right to be "secure in their persons, houses, papers, and effects against unreasonable searches and seizures." To conduct a search or seizure, the government must have a "warrant." A judge can issue a search warrant if there is evidence to show "probable cause" to believe a crime has been committed and that specific evidence exists in the particular location to be searched.

What is missing in the NWA computer search case? Sworn evidence of a crime. Probable cause. A search warrant. The federal judge allowed the search of personal home computers without a warrant.

Civil Cases Canceling Civil Rights
Why was NWA permitted to conduct a warrantless search of personal property? In civil cases, a party does not need a warrant to get documents and evidence from the opposing party or third parties. Rather, the party issues a "discovery" demand or a "subpoena." If the opposing party fails or refuses to turn over the documents and evidence that has been demanded, then the court can impose fines and other legal penalties, and can even dismiss part or all of the opposing party's case.

NWA's searches go far beyond ordinary "civil discovery." NWA got the legal authority to conduct searches of private property in private homes. Because the case was not "criminal" but "civil," the federal judge apparently cast aside the Fourth Amendment.

Dispensing with Constitutional rights by dubbing a case a private "civil" matter is an old legal trick which Americans should never tolerate. Recall the famous 1948 case of Shelley v. Kraemer, where white property owners had entered into a "restrictive covenant" to prohibit any of them from ever selling their homes to blacks or Asians. When some of the owners eventually did sell their homes to black buyers, the other owners brought a civil suit in the courts to nullify those sales.

By filing a lawsuit, the white buyers in the Shelley case were trying to use the police power of the government in a civil case to enforce a private agreement. The U.S. Supreme Court saw through the trick. It would be a violation of the Fourteenth Amendment for the government itself to deny the buyers their property rights just because of their race. So, the Supreme Court explained, it would equally be wrong for the courts to apply "the full coercive power of government to deny to [the buyers], on the grounds of race or color, the enjoyment of property rights" just because of the white homeowners' private agreement. The Constitution would not permit courts to enforce private bigotry just because that bigotry was found in a private agreement.

The Supreme Court's reasoning in Shelley v. Kraemer should apply to prevent the NWA searches. The Fourth Amendment prohibits a government from searching a private home without a warrant based on sworn testimony and probable cause. Likewise, a court ought not be able to use the police power to support a private entity (NWA) to conduct nonconsensual, warrantless searches of private homes.

Warrantless searches of private property in private homes, backed up by the police power authorized by courts in "civil" cases, gravely endanger American liberty. Buried in a labor dispute far away from the news spotlight is this ruling that end-runs the Fourth Amendment. What will prevent this ruling from becoming established law in many other cases?

Borrowing James Bovard's phrase from his book, "Freedom in Chains," employers and judges, like politicians, "rarely give formal warnings of how they intend to abuse the power they acquire." Read your Bill of Rights.

Richard W. Stevens, a lawyer, is author of "Dial 911 and Die" and "It's Common Sense to Use Our Bill of Rights ... Or Lose Them."


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