State Law, the Constitution and Your Rights, Part II

By Rich Kozlovich

On Monday, April 23, 2018 I posted an article entitled, State Law, the Constitution and Your Rights!, reporting on a decision by the federal Sixth Circuit 4th Amendment ruling. I think it’s important to recap some of what was said in that first article.

I received a “For Immediate Publication” press release from the 1851 Center for Constitutional Law entitled, Sixth Circuit Victory: State Cannot Inspect Ohioans' Businesses Records Without Warrant.

This started around four years ago dealing with a company dealing in precious metals, which falls under the Precious Metals Dealers Act ("PMDA"). This gave state authorities the “right” to ignore 4th amendment rights, by demanding “all books, forms, records, and all other sources of information with regard to the business shall at all times be available to inspection”. Furthermore, the statute gave the state “free access to the books and papers and other sources of information with regard to the business”, and that information shall “be open to the police upon demand.” They further demand: businesses at the end of the business day are be required to fax business records for that day to the police.”

The plain language of the 4th Amendment says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Initially the Sixth District Court found in favor of the businesses in question, and I sent that information out to the leadership of our industry calling this a “game changer”. Not only did no one agree with me, those who responded found my interpretation of the original ruling to be completely wrong.

Apparently, the Commerce Department didn’t like that ruling so they appealed it, and wouldn’t you know it – the Appeals Court not only upheld the original ruling - they defined it in the exact same way I did.

"Business owners cannot be forced to choose between being arrested on the spot and standing on their Fourth Amendment rights." …………"This ruling essentially affirms that while government may request some basic record-keeping, reporting, and inspection of inventory purchased from the public that has been reported stolen, state officials cannot walk into a business without a warrant or evidence of wrong-doing and demand to review our papers, cell phones, laptops, or other business records," said Maurice Thompson, Executive Director of the 1851 Center. "No entrepreneur deserves to be arrested for questioning the authority of a state agent to show up at his business unannounced, without any evidence of wrongdoing, and confiscate or filter through these records." …………."This precedent will guard warrantless searches of business records in all industries, since the Court of Appeals decision acknowledged that even 'closely regulated' industries are entitled to greater protection. Ohioans should feel free to decline invasive and costly government searches without fear of retaliation."

Since then I’ve contacted the Ohio Department of Agriculture, the Commerce Department and the Attorney General to get their views on this issue.

The Commerce Department representative stated: “In response to the questions you asked, the Ohio Division of Financial Institutions intends to comply with recent decision of the Sixth Circuit, but the Court’s ruling does not impact the Division’s ability to license and examine precious metals dealers. As far as any further appeals or how this may impact regulation of other areas, we can’t speculate on that.”

It appears to me they’re intending to give lip service to the ruling while doing what they’ve been doing right along, which is what triggered the law suit. Which bodes well this question: If this ruling “does not impact the Division’s ability to license and examine precious metal dealers”, why did they appeal the original ruling which wasn’t as specific and restrictive as the Appeals Court ruling?

The Department of Agriculture doesn’t wish to go on record on this issue, but I can report their official position is they "believe" they have a “legal right” to enter our businesses and inspect our records and businesses on demand and refusal of that “legal right” is justification for obtaining a warrant.

But that’s not what the ruling says! Do they understand that? I find the Department's reasoning to be completely convoluted.

I contacted the Attorney General’s office asking what their responsibilities are regarding this issue and what happens if a state agency refuses to follow this federal ruling, which is now the law of the land in Ohio and all states in the Federal Sixth District. They merely passed it off as an issue with the Commerce Department. I probably should have called the District Court to get their take on this, but having a job really interferes with my life.

The pesticide and fertilizer industries of Ohio have had a very good working relationship with the Ohio Department of Agriculture, a relationship other states envy. We like that relationship, and have no desire to upset it, but we have to understand just because we’re dealing with reasonable people today, what will happen when they're gone?

I’ve found my inspectors to be reasonable following the principle adopted by our regulators of “voluntary compliance”. They have a job that I personally find unenviable. And all those involved in the local and state associations try to be as courteous as possible, but I know that’s not always the case. And not all inspectors in the past have been reasonable based on discussions with other owners, and I've found some have the tendency to make up their own rules as they go along.  Like an umpire who has his own strike zone irrespective of what the rule book says.  But this isn't a ball game, it's real life.    

One even told one pest control company’s customer to sue him, and it wasn’t a misapplication issue, it was a consumer complaint issue. They didn’t think the company did a good enough job so the inspector told the householder to sue them.

We need to ask: Just when did the state legislate that it was the Ohio Department of Agriculture’s responsibility was to act as a consumer complaint bureau when there was no chemical misapplication?

For years I would see these reports of complaints to the Agriculture Department about our industry and for years I would ask the same question: How many of those were consumer complaints versus misapplications. The answer was always the same: We don’t break complaints that down that way. Maybe that changed, but we still have to ask: Why are they involved at all, and why didn't they break them down in that way because those presentations were predicated on the proper use of pesticides.

And again, what happens when administrations change and reasonable people are gone?

 Let’s take a trip back in time to 2008 when the Ohio Department of Agriculture took part in a raid on a peaceful family, “using tactics normally reserved for drug dealers, a heavily armed team raided an Ohio family farmhouse on December 1, 2008. Agents herded women and children, the only family members home at the time, into the living room and held them there for hours while they ransacked the premises and seized belongings, including food, computers and records.”

What was their crime?

“The Stowers are sheep farmers and operate Manna Storehouse, an organic food buying cooperative in LaGrange, Ohio, just outside of Cleveland. The agents confiscated one year’s worth of family food, food purchased for coop members, computers and all business records"………"The agents possessed a search warrant similar to that used for drug dealers, giving them permission to take anything and everything."

“We had a sheriff’s department group of about 11-12, I don’t know, 13 men come into our home. It was violent, it was belligerent, they didn’t identify themselves,” Jacqueline Stowers said. She and 10 children were forcibly herded into a room and held there for at least six hours, she said. “In the meantime we had people with guns inside and outside,” she said. The legal representatives said a report from the sheriff’s department said one of the deputies “even snatched a cell phone out of the hand of a teenage son who was attempting to call Mr. Stowers (during the raid).”……… “Officers rushed into the Stowers’ home with guns drawn and held the family – including 10 young children – captive for six hours.

Although the “Department of Agriculture said its officers were at the scene in an advisory role”, that sounds hollow, and they were named in the lawsuit for this outrageous abuse of governmental power.

Could this happen now? With those currently in charge at ODA I don’t think so, but what about tomorrow?

All things change and the reasoning and actions of the Founding Fathers for a 4th Amendment were sound then, and are sound today, and based on a rock like foundation - the preservation of freedom. When we become uninterested in maintaining those rights we’re adopting a dangerous course to tyranny. Decisions are going to have to be made, and those decisions cannot be based on industry policy.

This is no longer a policy issue - it's a matter of law. And what happens if a company runs afoul of this issue? What will our national and state associations do? Where will they stand? Who will they support? If our trade associations are here to protect us, as claimed by out national association, what will they do when if and when this hits the fan?

Part III will be forthcoming.

State Law, the Constitution and Your Rights!

By Rich Kozlovich

Forty years ago I was working for a construction company who was building what at that time was the largest coal fired power plant in the world, and safety was a major issue. I got to know the people from the Safety Department, which of course dealt with OSHA regulations, all of which I found more than a little interesting, and I kept paying attention to this issue as a result.

Around that time there was a factory in Washington state OSHA wanted to inspect and the company refused stating if they didn’t have a warrant they weren’t coming in. Of course, OSHA went after them in court – but here’s the rub – the company won. The company claimed their biggest problem was to pay for the legal fees.

Around twenty years ago I wanted to do a piece on what I consider violations of the 4th and 5th amendments of the Constitution regarding what seemed to me to be clearly unconstitutional searches by state government agencies. I spent hours looking for the case in Washington state, but I couldn’t find it, so all I’ve said on that is from memory, but that case was the foundation for my thoughts on this issue of illegal search and seizure of legitimate businesses property by overreaching, out of control government agencies.

Yesterday I received a “For Immediate Publication” press release from the 1851 Center for Constitutional Law entitled, Sixth Circuit Victory: State Cannot Inspect Ohioans' BusinessesRecords Without Warrant.

This started around four years ago dealing with a company dealing in precious metals, which falls under the Precious Metals Dealers Act ("PMDA"). This gave state authorities the “right” to ignore 4th amendment rights, by demanding “all books, forms, records, and all other sources of information with regard to the business shall at all times be available to inspection”. Furthermore, the statute gave the state “free access to the books and papers and other sources of information with regard to the business”, and that information shall “be open to the police upon demand.” They further demand: businesses at the end of the business day are be required to fax business records for that day to the police.”

I don’t know about everyone else, but to me those must be considered, “conveniently worded “writs of assistance”’,  just as were the King of England’s.  Statutes such as the one fought in court in this case couldn’t be considered anything less than “conveniently worded” rights of search and seizure that were extremely broad and general in scope, giving “broad powers” to state agents by any rational definition. Later we will see why that’s important.

Drug dealers, murders, and thieves would have their cases thrown out of court if they were dealt with in this manner, but legitimate businesses apparently have somewhere between less rights and no rights against illegal search and seizure.

Before we discuss the 4th amendment let’s discuss the Bill of Rights.

The Ten Amendments were adopted in 1791 for two reasons, the Constitution, as originally written, really didn’t have individual rights protections, and many in the States felt changes were required to the Constitution to guarantee those protections became rights, and to prevent the federal government from becoming all powerful and forgetting the government was the employee – and the people were the employer.

It was clear the Constitution didn’t address one of the major issues which prompted the Revolution - Search and Seizure by the King’s representatives. The Founding Fathers rightly believed there was no freedom if the government could march into your home and search and seize whatever they found. That principle wasn’t unique to America during the 1700’s. This is a foundational principle in English history as first outlined in 1604 by Sir Edward Coke who said:  

“The house of every one is to him as his castle and fortress, as well for his defense against injury and violence as for his repose.

The English government used revenue collection bills to steal as much from the colonists as possible. The colonists resented it and did everything in their power to overcome those laws through smuggling. In short, this became an extortion racket imposed on the American colonists by an all powerful central government.

The Boston Tea Party was not about the tax on tea. The British East India company was going broke, but they had tons of tea rotting on the docks of England, so it was decided to send it to America and sell it cheaply. So cheaply that even with the tax on the tea it would be sold more cheaply than could the smugglers. First, this would save the British East India Company, and secondly, this would get Americans used to paying the tax. John Hancock was the primary instigator of the Boston Tea Party – he was also a major player in the smuggling racket.

So, to overcome this the King decided to create “conveniently worded “writs of assistance”’, which gave his agents broad powers to “enter someone’s property or home with no notice and without any reason. Agents could interrogate anyone about their use of customer goods and force cooperation of any person. These types of searches and seizures became an egregious affront to the people of the colonies.”

That’s one of the things the Revolution was about, as a result the Founders saw the need for a 4th Amendment to prevent the Federal government from imposing the same kind of tyranny as did the British government.

The 4th 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, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

We also have to understand everything in the Constitution only applied to preventing the Federal government from abusing our rights – it didn’t prevent the states from doing so. The word State didn’t mean “province” in that time frame – it meant an independent nation, and those States had their own Constitutions that allowed for things we would be outraged at today. That changed with the Due Process Clause of the 14th Amendment adopted on July 9, 1868, as one of the Reconstruction Amendments saying:

The 14th Amendment: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The reasoning and actions of the Founding Fathers for a 4th Amendment were sound then, and are sound today, and based on a rock like foundation - the preservation of freedom. When we become uninterested in maintaining those rights we’re adopting a dangerous course to tyranny, which parleys well with the 5th amendment against self-incrimination.

Here’s the information from “the 1851 Center for Constitutional Law took up the case in 2012 on behalf of Liberty Coins, a coin dealer of Delaware, Ohio, and Worthington Jewelers, a retail jeweler in Worthington, Ohio. Each balked at the prospect of losing their business licenses and being fined and prosecuted for refusing to turn over cell phones, laptops, and paper records simply "upon demand" of state enforcement agents.”

According to the press release, the decision of the court is explained as follows:

"Business owners cannot be forced to choose between being arrested on the spot and standing on their Fourth Amendment rights." "[The challenged statutes] are both unnecessary to furthering Ohio's state interest and too broad in scope to withstand facial Fourth Amendment scrutiny . . . both statutes effectively allow searches of dealers' entire businesses . . . They therefore do not provide any standards to guide inspectors in the exercise of their authority to search." "The provisions' seemingly unlimited scope, along with the grant of free access to such information at all times, does not sufficiently constrain the discretion of the inspectors."

"This ruling essentially affirms that while government may request some basic record-keeping, reporting, and inspection of inventory purchased from the public that has been reported stolen, state officials cannot walk into a business without a warrant or evidence of wrong-doing and demand to review our papers, cell phones, laptops, or other business records," said Maurice Thompson, Executive Director of the 1851 Center. "No entrepreneur deserves to be arrested for questioning the authority of a state agent to show up at his business unannounced, without any evidence of wrongdoing, and confiscate or filter through these records."

Maurice Thompson of the 1851 Center for Constitutional Law added, "This precedent will guard warrantless searches of business records in all industries, since the Court of Appeals decision acknowledged that even 'closely regulated' industries are entitled to greater protection. Ohioans should feel free to decline invasive and costly government searches without fear of retaliation."

The pesticide and fertilizer industries of Ohio have had a very good working relationship with the Ohio Department of Agriculture, a relationship other states envy.  We like that relationship, and have no desire to upset it, but decisions are going to have to be made, and those decisions cannot be based on industry policy.  This is no longer a policy issue - it's a matter of law, and it's my belief every trade association for every industry in the nation should embrace this ruling to institute this kind of challenge in every state.

Will this be appealed to the Supreme Court, and if so how will they rule?  I don't know since the Supreme Court has ruled against 4th amendment protections regarding FISA searches, but those are national security issues involving foreign entities.  This is a domestic issue - and I think they would affirm this decision since it's patently obvious these kinds of 4th Amendment violations aren't much different that the extortion racket the King of England imposed on the American colonies. 

It's time to "Drain the Swamp".  We now have a window of opportunity - let's take advantage of if before it closes, maybe forever!