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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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