For several years, the City of Newark used the 2006 International Property Maintenance Code as part of its housing code. In September 2010, the city gave notice that it intended to replace the 2006 Code with the 2009 International Code, with several Newark specific modifications.
One of the modifications would require that every new residential lease in Newark contain a provision by which the tenant agreed to provide access for all inspections required by the city. That would have been a significant departure from existing law, since it would make waiver of a Fourth Amendment right a condition of renting in Newark.
Why this is a problem
The Fourth Amendment of the Constitution bars the government from entering a home without:
- A search warrant granted by a judge after looking at evidence that supports probable cause that a crime has been committed, or
- Permission from the resident is granted or
- Exigent circumstances exist.
The exigent circumstances exception is important. It means, for example, that while the fire marshal would need a warrant to check for a fire code violation, fire fighters called to a blaze can go right in.
The ACLU-DE was contacted by two Newark landlords who were concerned that the new law would require them to cooperate in depriving their tenants of Fourth Amendment protection. They were right, so I sent a letter to the city attorney providing him with the relevant law.
My letter quoted the 1967 U.S. Supreme Court opinion that said Fourth Amendment requirements apply to public health inspections. It also explained that Newark could not make an end run around the Constitution by insisting that tenants agree to entry when they signed leases. The law prohibits the government from forcing people to waive their constitutional right unless there is a compelling governmental interest to do so.
My letter also reminded the city government of the words of Justice Brandeis that public officials cannot hear too often:
In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
A Newark city councilman read my letter and called me to ask for more information. We discussed the Fourth Amendment concerns and how Newark can achieve its purpose of making sure housing is safe without violating tenants’ rights. At the hearing that evening, the councilman moved that the objectionable provision be deleted from the ordinance before it was voted on. His motion carried.
Read our letter to the City of Newark here.
