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Fight escalates over city's demand to enter private home

Michael Marcavage

A dispute over a city’s demand to enter and inspect a recognized free speech activist’s private residence is being escalated to the 3rd Circuit Court of Appeals after a district judge’s decision essentially endorsed the requirement by Lansdowne, Pa., authorities.

Attorneys for homeowner Michael Marcavage,  known for challenging city, county and other restrictions on street preachers, say they have filed a notice of appeal in the fight over the city’s demand that inspectors be allowed on a regular basis to enter and analyze Marcavage’s private residence.

“The sanctity of one’s home should not be undermined for any reason, least of all because of bureaucratic policy-making,” said John Whitehead, president of the Rutherford Institute, which is working on the case.

“Homeowners, whether or not they own rental property, have every right to be free from unreasonable searches by government agents.”

“Constitutional Chaos: What Happens When the Government Breaks Its Own Laws”

At issue is a city requirement that residences be open for inspectors if they are to be rented out. The inspection requirement applies even to any portion of a building that the owner uses as a residence.


The city’s Ordinance 1188, which was adopted in 2003, “requires anyone owning rental properties in Landsdowne to obtain an annual rental license. In order to obtain a license, a property owner had to arrange for a rental license inspection… the scope of the inspection included the exterior and interior areas of the rental unit,” according to a report from the Rutherford Institute.

“Furthermore, in making such an inspection, a Lansdowne Code Enforcement officer was to inspect any owner-occuped portion of a rental property, including its interior.”

Marcavage owns two duplex structures in the city and lives in one of the units.

When, based on their questionable constitutionality, he refused to apply for an inspection and contacted city officials to express concerns over the demand for a search of his residence without a warrant, city officials posted notices at his properties stating it was “unlawful for landlord to collect any rent, use, or occupy this building.”

A recent decision by a federal judge in a lawsuit Marcavage filed over the dispute agreed with the city, saying that the required searches of his residence were just fine. So Whitehead advanced the case to the 3rd Circuit.

The institute says it will argue that inspections of non-rental property constitute “unreasonable governmental intrusion into one’s home.”

It says that this situation effectively is a warrantless seizure of Marcavage’s property, because the city is forbidding its use without the warrantless inspections, in violation of the 4th Amendment.

Marcavage, a ministry director, leader and street evangelist, has been involved in a number of court disputes, but they mostly have been over his rights to free speech.

One recent case challenged a decision in Winchester, Va., by city officials to restrict speech if someone else might be offended by it.

Marcavage won his case there. He’s also had disputes over restrictions on speech rights in Philadelphia and New York and other locations, including at the Liberty Bell center, where he was told he could not express his beliefs to passersby.

His is not the only dispute over government demands regarding private property. Heading to the U.S. Supreme Court is a Idaho dispute over the government’s demand that a family essentially turn its private property into a preserve.

Mike and Chantell Sackett

The Pacific Legal Foundation is fighting the battle on behalf of a Priest Lake, Idaho, family, Chantell and Mike Sackett, who were told they could be subject to $40 million in fines for not complying with the government requirements.

Attorney Damien Schiff, who will be arguing before the high court in the case, said it’s simply a case of a government run amok, and it poses a potential threat to perhaps not every landowner across the nation but untold millions.

The Sacketts, Schiff said, “bought property, and the government in effect has ordered them to treat the property like a public park.”

“The EPA has not paid them a dime for that privilege,” he said. “The regime we have operating now allows the EPA to take property without having to pay for it, or giving the owners the right to their day in court.””

The organization has prepared a video to explain the case:

The case developed when the Sacketts bought a .63-acre parcel of land for $23,000 in a subdivision in Priest Lake. The land is 500 feet from a lake, had a city water and sewer tap assigned, had no running or standing water and was in the middle of other developed properties.

The couple obtained all of the needed permits for their project and started work. Suddenly, the Environmental Protection Agency showed up on the building site, demanded that the work stop and issued a “compliance order” that the couple remove the fill they had brought in, restore the land to its native condition, plant trees every 10 feet, fence it off and let it sit for three years.

Then they would, for costs estimated at roughly a quarter of a million dollars, be allowed to “request” permission from the government to build on their own land.

Or else, warned the agency, there is the possibility of fines of $37,500 per day – with the total now surpassing $40 million.