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