Post on 09-May-2022
THE ENFORCER
ENFORCEMENT IS EFFECTIVE ONLY
WHEN IT IS ENFORCEABLE
CLOSE ENCOUNTERSOF THE
“OH MY…”, “REALLY…”, “DID YOU EVER…” KIND
PREPARED AND PRESENTED BY
CANDACE CHAPPELL
SENIOR ASSISTANT CITY ATTORNEY
CITY OF IRVING, TEXAS
IRVING, TEXAS 75061
972.721.3600
972.721.3599 (FAX)
CCHAPPEL@CITYOFIRVING.ORG
The Constitution of the United States
We the People of the United States,in Order to form a more perfect Union, establish Justice, insure domestic
Tranquility, provide for the common defence, promote the general Welfare, andsecure the Blessings of Liberty to ourselves and our Posterity, do ordain andestablish this Constitution forthe United States of America. . . . . . .Articles in Addition to, and Amendment of, The Constitution of the United States of America, proposed by Congress, and ratified by the several States, pursuant to the Fifth Article of the Original
Constitution. (The first ten Amendments [Bill of Rights] were ratified effective December 15, 1791)
POLICE POWER –-
Municipality’s duty to protect
By providing for the needs of the people including their
health,
safety,
welfare
while giving deference to private property owner’s rights.
May exercise police power to the extent
not prohibited by the United States or
Your State’s Constitutions or federal or
state law.
Why the Civics refresher …..
YOU have limitations on what you do and why you do what you do
YOU are serving the needs of and protecting the general public, not
a particular individual
YOU can be held personally liable if what you do is not in line with
federal, state and local regulations and procedures
Potential Personal Liability
A. Investigative Stage – properly identify responsible parties
1. This is VERY IMPORTANT due to proper notice and potential for false arrest
B. Consensual Entry into Property – must be given in accordance with the 4th and 14th amendments
1. Consent must be given freely and voluntarily
2. Not coerced, either implicitly or explicitly, nor by implied threat or covert force
3. Document, document, document …..
C. Non-consensual Entry into Property
1. Section 1983 Civil Rights violation
a. Acting under color of law and deprived complainant of rights, privileges, or immunities
b. Malicious prosecution
c. Qualified Immunity may still be a defense if conduct was objectively reasonable
D. Seizure/Confiscation of Private Property
E. Arrests of Persons Misidentified or Improperly Identified
1. If conduct was intentional – it is clearly a constitutional right violation (civil rights violation)
F. Property Damage
QUALIFIED IMMUNITY?
• Doctrine of Qualified Immunity -- Recoverable damages with showing of damage
• Acting within discretionary authority – conduct does not violate clearly
established statutory and constitutional law of which a reasonable person
would have known
• Two step determination
• Did the officer’s conduct violate a constitutional right, and
• Was that right clearly established (would a reasonable official
understand that the official was violating the person’s right) at the time of
the alleged misconduct
ORDINANCE
A RULE, LAW OR STATUTE
EQUIVALENT OF A MUNICIPAL STATUTE
PASSED BY THE CITY COUNCIL, OR EQUIVALENT BODY
GOVERNING MATTERS NOT ALREADY COVERED BY
FEDERAL OR STATE
COMMONLY GOVERN ZONING, BUILDING, SAFETY, ETC.
MUNICIPAL ACTS PRESUMED VALID IF:
• NOT VOID AT THE TIME IT WAS ENACTED
OR
• NOT PREEMPTED
• NO LAWSUIT TO ANNUL OR INVALIDATE
Ordinance must be consistent,
and not conflict with federal
and state law.
COMPONENTS OF AN ORDINANCEVIOLATION
description of the offense;
assigning responsibility to a person for
violations or adherence to a particular standard;
outlining procedures for enforcement;
assigning an enforcement authority; and
providing for a penalty.
SO MANY
ORDINANCES --
SO LITTLE TIME
Unexpected Pitfalls
Hidden issues that you do not want your name tied
to
Camarav.
Municipal Court of San Francisco387 U.S. 523, 87 S.Ct. 1727 (1967)
• Routine annual inspection of an apartment building for possible violations of the
City’s Housing Code
• Lessee refused to permit a warrantless inspection of his ground floor premises
• After numerous attempts to gain entry, the City filed a complaint against the
lessee asserting he was in violation of the City Ordinance by REFUSING TO
PERMIT A LAWFUL INSPECTION
ISSUE OFCONSTITUTIONALITY
OF ORDINANCE
• The city’s ordinance authorized employees to have the right to enter any building,
structure, or premise to perform any duty imposed upon the inspector
• The violation was for refusal to allow entry
• Penalty was a misdemeanor punishable by fine up to $500 or
• Imprisonment up to six months or
• both
WHAT DO YOU THINK . . .
• Court of Appeals held that the ordinance did not violate Fourth Amendment rights
because
• it was part of a regulatory scheme which is essentially civil rather than
criminal in nature insasmuch as it creates a right of inspection which is limited
in scope and may not be executed under unreasonable conditions
• BUT the U.S. Supreme Court held differently
U.S. Supreme Court Said . . .
• It was held that
• administrative searches by municipal health and safety inspectors
constitute significant intrusions upon interests protected by the Fourth
Amendment, and
• such searches, when authorized and conducted without warrant
procedures, lack traditional safeguards which Fourth Amendments
guarantees to individuals
Freeman v. City of Dallas242 F.3d 642 (2001)
• Owner purchased 2 vacant, deteriorated apartment buildings. She hired Freeman to rehabilitate
the buildings. Freeman was not an engineer or architect and did not have a contractor’s license.
Ultimately, the owner, who ignored numerous requests from the City to repair or demolish the
buildings, was cited for numerous violations.
• The City Urban Rehabilitation Standards Board, after hearing from Freeman (on two different
occasions) that he was allegedly an owner and “attorney-in-fact”, the estimated costs would be
$200,000, some repairs had been done, funds were limited and they needed more time, finally
recommended demolition.
The Process . . .
• Notice was properly served
• Owner and Freeman failed to appeal AND failed to demolish the buildings within
thirty days.
• Costs incurred by the City - $16,000.00, which was levied onto the property as a
lien
Outcome . . .
• A YEAR AND A HALF LATER . . .
• Owner and Freeman sued City alleging demolition proceeded without first
obtaining a judicial warrant which constituted an unreasonable seizure violating
Fourth Amendment. Also, the “Boards” procedure for condemning and
demolishing the buildings violated the Fourth and Fourteenth Amendments due
process. Initially, the lower courts sided with the Owner and Freeman on the
takings claim incident to the warrant issue.
• BUT the Federal Court of Appeal held differently
So . . . What have we learned
• Fourth Amendment prohibits Unreasonable Searches and Seizures
• REASONABLENESS IS BASED UPON FACTS AND CIRCUMSTANCES. STATE
AND LOCAL PROCEDURES PROVIDED FOR “REASONABLE NOTICE TO
AND TIME LIMITS UPON LANDOWNER’S ACTIONS, MULTIPLE HEARING
POSSIBILITIES, FLEXIBLE REMEDIES AND JUDICIAL REVIEW.”
• GET A JUDICIAL WARRANT before you demolish
City of Dallas vs. Stewart361 S.W. 3d 562 (2012)
• Municipal authority to abate substandard structures as a nuisance
• Initial determination made by an administrative body (commission)
• Protection of property owner’s constitutional rights – takings claim –
requires an independent court review
MAKING THE CASE
• The City followed all the proper processes for notice, hearing, and in
September 2002, the “Board” made the determination of nuisance and
ordered demolition.
• End of October the City Inspector made the determination that no repairs had
been made, therefor the Judicial Demolition Warrant was obtained..
• At trial, Stewart added to her claim of due process a claim of unconstitutional
taking.
• Stewart claimed she had made improvements to the property in the amount of
$75,707.67, and the jury awarded her the damages.
SO WHAT WENT WRONG?
• THE SUPREME COURT HELD
• The due process claim was properly found in favor of the City
• The takings claim was properly found in favor of Stewart
• AND HERE IS WHY . .
• There was no pre-demolition walk-thru nor supporting documentation,
therefore, the city had no rebuttal to her claim
State of Texas v. Cooper396 S.W. 3d 603, (aff’d, 2013)
City of Plano (PPMC) adopted 2003 Int’l Prop. Maint.
Code, as amended, into their Prop. Maint. Code(PPMC)
ISSUE– whether the State may prosecute a violation of the individual requirements of the IPMC or whether it must follow section 106.3 of the IPMC and prosecute the failure to comply with a notice of violation of those requirements
Defendant appealed the trial courts finding of guilt on two violations of the
City of Plano’s
property maintenance code.
Offense – failing to comply with specific sections of the IPMC, as adopted by
the City
The Court of Appeals and the Texas Court of Criminal Appeals upheld the
trial court’s findings.
The City argued their code created two (2) offenses –
Offense #1 - in the original IMPC it is a violation, upon receipt of notice , for
failing to correct the violation, and
Offense #2 - created by City it is a violation for the condition to exist
The Texas Supreme Court held that “both complaints
(violations) alleged violations of section 6-46 (incorporating
the original prosecution clauses of the IPMC), not 6-45 (the
City’s penalty provision); thereby applying the “plain
meaning interpretation that if the City intended to delete
the IPMC penalty provision it would have done so, but since
the City did not, the court was left to enforce the words of
the ordinance rather than the unexpected intent/result the
City wishes to infer.
• KNOW YOUR ORDINANCE
WHAT THE ORDINANCE PROVIDES
WHAT ARE VIOLATIONS OF THE ORDINANCE
WHAT ARE THE REQUIREMENTS TO ALLEGE AND
PURSUE A VIOLATION OF THE ORDINANCE
What is Our Duty/Job
To enforce the laws, rule and regulations of the State and City
To do so in a legal and justiciable manner
To follow the procedures set forth by the City and State
Do the best we can for the City, ourselves and those we work with
and for
Love what you do because you can and do make a difference