Engineering & Manufacturing Services, LLC v. Ashton, et al.

By DAVID “CHIP” COMSTOCK JR.

Engineering & Manufacturing Services, LLC (EMS) is an aftermarket sheet metal manufacturer that occupies a large warehouse building in Cleveland, Ohio. The City of Cleveland has a codified ordinance that provides the right of entry to the fire chief or his authorized representative during reasonable hours to inspect structures for hazardous conditions. Pursuant to this ordinance, Cleveland Fire Department (CFD) Battalion Chief Chester Ashton, along with CFD firefighters, went to the EMS building to conduct an annual interior inspection of the premises to determine if there were any hazardous conditions present as well as to preplan the large industrial building. The firefighters were denied access to the premises by the owner, Alexander Erdey.

After the firefighters were denied access, the city applied for a search warrant. Ashton submitted an affidavit in support of the warrant. In his affidavit, he noted that he was the battalion chief located closest to the EMS building and would be responsible for fire suppression at the building if a fire were to occur there. He outlined the provisions of the Cleveland-codified ordinance giving the right of entry to the fire chief or his authorized representatives and noted that, as part of his duties, he conducted annual inspections of industrial sites to “get to know the property and to make certain there were no hazardous or dangerous conditions inside that would pose a threat to firefighters in the event of a fire.” Ashton noted that he had attempted to inspect the premises on two occasions and had been denied access by the owner. He also opined, in his affidavit, that, based on his experience and these facts, it was likely that the conditions on the interior of the EMS building were in violation of Cleveland’s fire code and are or may become hazardous to the public health, safety, or welfare. A search warrant was issued and, thereafter, CFD members including Ashton, Deputy Fire Marshal John McKenna, and Chief Fire Inspector Douglas Veselsky conducted a wall-to-wall administrative search of the manufacturing plant.

Thereafter, EMS filed a federal civil rights lawsuit, alleging a violation of 42 U.S.C. Section 1983. Specifically, the manufacturer alleged that the affidavit in support of the search warrant pursuant to which the fire department officers conducted their search in the manufacturer’s plant failed to present facts sufficient to constitute probable cause and contained material and intentional or reckless falsehoods. EMS alleged that the officers’ actions were deliberate and intentional violations of its rights under the Fourth and Fourteenth Amendments.

At the outset of the federal court case, EMS filed a motion for judgment on the issue of liability. In essence, the manufacturer argued that it was entitled to judgment as a matter of law because the application for the search warrant did not set forth specific evidence of an existing fire code violation, and without supporting facts the CFD could not demonstrate administrative probable cause. EMS argued that the warrant application was factually insufficient for the magistrate to find that the inspection was based on reasonable, legislative, or administrative standards—i.e., neutral criteria.

The three defendants opposed EMS’s motion. The district court denied EMS’s motion for judgment, concluding that Ashton’s affidavit provided probable cause for the administrative warrant. The district court recognized Ashton’s qualifications and that the firefighters he supervised would be responsible for responding to any fires occurring at EMS. The affidavit included information relating to the Cleveland-codified ordinance, and the affidavit specifically mentioned the CFD’s annual inspections of industrial sites where firefighters were to become familiar with the property and ensure that no hazardous or dangerous conditions existed that would pose a threat to firefighters in the event of a fire. In conclusion, the district court wrote

After EMS’s motion for judgment was denied by the district court, the three fire officers filed their own motion for summary judgment asserting that, because EMS’s complaint raised no issue other than the validity of the warrant and because the district court had ruled the warrant was supported by probable cause, they were entitled to judgment as a matter of law. EMS then opposed this motion, arguing that the warrant was not based on administrative probable cause (the same argument raised in its own motion), that the evidence established that the selection of buildings to be inspected and decisions on how often the buildings were to be inspected were left to the discretion of the fire department officials, that the search-warrant application failed to include a copy of a “neutral” inspection plan, and that the defendants failed to show how the EMS search met the plan’s neutral selection criteria.

The three defendants replied, arguing that Cleveland’s inspection plan was constitutional and that EMS was selected for an annual inspection pursuant to a neutral administrative plan. The defendants argued that Captain Thomas Otto sent monthly inspection sheets to the battalions for buildings with water-based systems and that EMS appeared on the battalion list in 2006, 2007, and 2008. They further argued that Otto maintained a list of buildings to be inspected and that

Thereafter, the defendants also submitted, for the first time, an affidavit of Fire Marshal Mark Scott, which stated that, in the year the EMS warrant was obtained, the Fire Division conducted inspections at 8,449 of the 15,515 addresses on file, and that the Division “does not claim to inspect every address, every year—but that is the goal we strive to achieve.”

This additional reply was based on a Fire Division general order that had been issued seven years earlier. The order stated, in relevant part:

Thereafter, the district court ruled on the fire officers’ motion. The court noted that it previously denied EMS’s motion and had held that the company’s constitutional rights under the Fourth and Fourteenth Amendments were not violated because probable cause for the warrant existed. Because the plaintiff’s complaint pled no claim other than for the validity of the administrative search warrant and because the court previously held there were no constitutional violations in the issuance and the execution of the search warrant, the federal district court ruled in the fire officers’ favor. EMS thereafter appealed the dismissal to the United States Court of Appeals for the Sixth Circuit.

In reviewing the dismissal of the case, the Court of Appeals noted that the district court’s opinion dismissing the case against the fire officers did not discuss the probable cause issue; it merely noted its initial determination defining probable cause on EMS’s motion for judgment. That ruling rested on the court’s two conclusions that “a valid city ordinance authorized [the] administrative search” and that “annual inspections of industrial premises for fire safety concerns are reasonable and neutral.”

The appellate court began its analysis by noting that statutes such as Cleveland’s ordinance, on which the district court partly relied in concluding that probable cause was established, have been held to be unconstitutional by the United States Supreme Court unless construed to require a search warrant supported by administrative probable cause.

In Camara v. Mun. Court of City and County of San Francisco, 387 U.S. 523 (1967), the United States Supreme Court held that administrative inspections are significant intrusions on Fourth Amendment rights for which warrants generally are required and that probable cause exists in this context, “[i]f reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling.”(387 U.S. at 538)

The Supreme Court also held in See v. City of Seattle, 387 U.S. 541(1967), that the decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement officer in the field.” (387 U.S. at 545)

Because the three fire officers in the EMS case secured a warrant based on their authority under a Cleveland ordinance, the issue on appeal was whether the “annual interior inspection plan” was derived from neutral sources. The appellate court then reviewed the law relating to neutral inspection plans.

In Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), the United States Supreme Court established that administrative probable cause requires a neutral administrative legislation plan. That decision was reiterated by the Sixth Circuit Court of Appeals in Trinity Indus., Inc. v. Occupational Safety and Health Review Comm’n, 16 F.3d 1455 (6th Cir. 1994), in which that court held

EMS argued that, although a plan to search commercial buildings annually may satisfy Barlow’s neutrality requirement by rendering the “whom to search and how often to search” nondiscretionary, the evidence established that the CFD inspected a small fraction of buildings annually and, in reality, the captain and several others selected the buildings to be inspected without neutral selection criteria.

The Court of Appeals agreed with EMS’s position. In reviewing the evidence, the Court of Appeals noted that the evidence submitted to the trial court demonstrated that, although annual inspections are a goal of the fire department, the CFD actually inspected only a fraction of the commercial establishments in Cleveland annually and that individuals have input into the choice of the buildings to be inspected—i.e., that the fire department’s administrative plan for annual inspections has human input and components that are not neutral. As a result, the appellate court reversed the district court’s dismissal of the claims against the three fire officers.

With the claims now reinstated against them, the three officers argued that they were entitled to qualified immunity. In 42 U.S.C. Section 1983 actions, an officer ordinarily receives qualified immunity if he relies on a judicially secured warrant. When the facts are not in dispute, a court can decide whether an officer is entitled to qualified immunity as a matter of law. In the EMS case, the facts pertinent to probable cause and qualified immunity were in dispute. The fire officers maintained that the affidavit accurately stated that Ashton sought to inspect EMS as part of the fire department’s “annual interior inspection plan” while EMS maintained there was no such plan and that, instead, the department inspected only a fraction of the commercial establishments in Cleveland annually, various fire officials had substantial input into what buildings actually were inspected, and there was no written criteria governing the selection of buildings inspected. EMS also maintained that “to the extent [Ashton’s affidavit] intended to convey that the fire department had a bona fide annual inspection plan that was selection neutral because all of the buildings were regularly and systematically inspected on a yearly basis, Ashton’s reference to ‘annual inspections’ was knowingly or recklessly false.” The appellate court noted that because disputed factual issues underlying the probable cause were present in the case, the fire officials were not entitled to summary judgment on qualified immunity grounds either. The appellate court then remanded the case to the trial court to resolve the factual dispute.

Fire inspectors across the United States inspect hundreds of thousands of buildings annually. For the most part, fire inspectors are granted access to buildings and property under the authority of state or local laws. Rarely are fire inspectors denied access by the building owner or occupant. However, when an inspector is denied access to property, obtaining an administrative search warrant must be done carefully to avoid a claim for a civil rights violation.

Engineering & Manufacturing Services, LLC v. Ashton and the other federal court cases preceding it make it clear that, before an administrative search warrant is obtained, in the absence of a specific fire code violation, fire departments must have in place a systematic, neutral selection process for inspections. The process may rely on a random selection basis. These processes may include drawing names out of a hat, conducting inspections at every fifth business on a list, using computer-generated lists of building occupancies, using lists of businesses rotated on an annual basis, conducting inspections by type of business, or using statistics (i.e., the number of fire alarms received from a business). Once a plan is in place, the fire department must be able to show that it follows the plan on a regular and routine basis. Although the City of Cleveland argued that it had such a plan, there remained a question as to whether or not the city actually followed the plan; therefore, the issue had to be resolved by the trial court.

Inspections and preplanning of businesses are important to protect the lives of firefighters, building owners, and occupants. Nonetheless, fire inspectors and fire officials must be careful not to subject themselves to personal liability by conducting searches that violate an owner/occupant’s clearly established rights under the Fourth and Fourteenth Amendments of the United States Constitution; using neutral inspection plans is an easy way to do just that.

ENDNOTE

1. Ordinance 381.04 provides in pertinent part: “The fire chief or his authorized representatives upon presentation of proper credentials, may enter any building or premises at all reasonable hours or at such times as may be necessary in an existing emergency to examine and inspect for hazardous or dangerous conditions . . . and for the maintenance of fire protection equipment. No person shall prevent, obstruct or delay any inspection or the performance of any lawful duty of a fireman acting within his official capacity.”

DAVID “CHIP” COMSTOCK JR. is a 32-year fire service veteran and chief of the Western Reserve Joint Fire District in Poland, Ohio. He is a chief fire officer designee and lectures and writes on fire service topics relating to chief and company officer operations, liability, and personnel issues. Comstock is also an attorney in the firm of Comstock, Springer & Wilson Co., L.P.A. in Youngstown, Ohio.