by Mitch Kokai
Senior Political Analyst, John Locke Foundation
George Leef shares with Forbes readers his analysis of a recent court ruling in a 2010 case involving the search of a Florida barber shop.
One of the main reasons for the American Revolution was the arrogance of British officials who searched and raided people’s property at will. To keep that from recurring in the new United States, this language was included in the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated.”
Grand words, but unfortunately they cannot prevent government officials from engaging in such conduct. Consider the following case.
Florida has a statute requiring that barbers be licensed and it gives the Department of Business and Professional Regulation (DBPR) authority to enforce it through biennial inspections of barber shops. Two inspectors conducted an inspection of the Strictly Skillz shop in Orlando on August 19, 2010. They found no violations.
But only two days later, DBPR came back to Strictly Skillz, this time with an astounding display of force: eight armed officers, including narcotics agents, some of them wearing masks and bullet-proof vests burst into the shop with weapons drawn. Squad cars blocked off the parking lot. The officers shouted that the customers were to leave immediately and that the shop was “closed down indefinitely.”
Several barbers who had been working were patted down, then handcuffed. When one of them, Reginald Trammon, protested that he had done nothing wrong, an officer replied, “It’s a pretty big book and I’m sure I can find something in there to take you to jail for.”
The good news? A court agreed that the government had overstepped its bounds.
In the trial court, the defendants moved for summary judgment (i.e., that the case against them should be dismissed) on that grounds that law enforcement officials have “qualified immunity” for actions they take in their official capacity. The trial judge ruled against them, so the defendants appealed to the 11th Circuit Court of Appeals.
On September 16, the 11th Circuit issued its decision in Berry v. Leslie. The court’s ruling, written by Judge Rosenbaum, strongly attacked the idea that government officials, police and regulatory, can hid behind an immunity defense when they engage in conduct they knew or should have known violated “clearly established statutory or constitutional rights” of individuals.
Judge Rosenbaum made it plain that the kind of storm trooper tactics used against the peaceful barbers in Strictly Skillz has no legal shield. He cited two prior cases in the 11th Circuit (which handles cases arising in Florida, Georgia, and Alabama) where the court had ruled against the “qualified immunity” defense on facts less egregious than in Berry. “Conducting a run-of-the-mill administrative inspection as though it is a criminal raid, when no indication exists that safety will be threatened by the inspection violates clearly established Fourth Amendment rights,” he wrote.
The fact that the court’s two precedents on this matter had not sunk in with officials led Judge Rosenbaum to acidly say, “We hope that the third time will be the charm.”