A federal judge reminds government inspectors: Get a warrant

The Hill

4 days ago

Get a warrant, government inspectors.
After years of litigation — including a trip to the U.S. Court of Appeals for the Tenth Circuit and a trial — that's the commonsense opinion from U.S. District Judge Kathyrn Vratil. Score a big win for property and privacy rights.
Your home is supposed to be your castle, of course. But for decades, the government treated it like anything but one. Enter Scott Johnson, who trains hunting dogs on the rural Kansas homestead he shares with his wife Harlene. He is a second-generation trainer, nationally recognized, has won countless awards, and plays by the rules. But that didn't stop the government from searching their property anyway and forcing him to waive his constitutional rights in exchange for a kennel license.
Under Kansas law, if Scott wanted to keep his livelihood, he was forced to accept warrantless searches at any time with no notice and no right to refuse. If he or his wife wasn't on-site within 30 minutes of a surprise inspection, he would face automatic fines and more searches. Even asking the inspector to return later or to get a warrant was punishable.
That's not just unreasonable but unconstitutional, as Judge Vratil has now ruled. The government's surprise warrantless search violated the Fourth Amendment.
Remarkably, Kansas — through two different Attorneys General administrations — defended its actions by invoking the 'pervasively regulated industry' exception to the Fourth Amendment's prohibition on warrantless searches. The U.S. Supreme Court created the exception decades ago for federally licensed liquor and firearms dealers. Since then, state and lower courts expanded it and unsurprisingly, governments took a maximalist view of it. It was a bureaucratic windfall.
In 2015, the Supreme Court explained the exception was supposed to be narrow and only applicable to inherently dangerous businesses — think underground mining and nuclear power plants — but governments didn't take the hint.
Thankfully, the judge didn't buy the idea that training a dog how to sit or point on command could be counted alongside such dangerous operations. Indeed, she warned that Kansas's logic 'could essentially turn any industry into a closely regulated one,' allowing the exception to 'swallow the rule' that protects us all: The government needs a warrant before searching.
The Founders wrote the Fourth Amendment to stop precisely this kind of regulatory overreach. The point was to forever stamp out searches where there was no reason for suspicion. Back then, colonists reviled those searches by British customs agents. In 1761, during a fiery, five-hour speech, lawyer James Otis railed against them in the famous Paxton's Case. He rightly declared it the 'worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book.' He went on. 'Now one of the most essential branches of English liberty is the freedom of one's house. A man's house is his castle.'
Today, suspicion-less searches have become far too accepted, both by the public and the courts. But Scott and Harlene didn't accept it. They just wanted their home to be treated like their castle.
Forcing law-abiding citizens to helplessly watch while a government agent looks through their workshop or their backyard — not because of any suspicion of wrongdoing, but because of their livelihood — is an indignity nobody should have to suffer.
Last week, Americans celebrated Independence Day — a time to reflect on the freedoms that define our nation. But freedom doesn't endure on its own. It must be defended. Sometimes in court, and sometimes by a dog trainer and his wife just trying to make a living on their own land.
This case is about protecting private property from intrusive government regulation. It was about reminding those in power that no license, no regulation, and no bureaucratic theory justifies treating a private homestead like it is government property.
Kansas isn't the only state with overreaching rules and abusive inspections. The temptation to regulate first and ask constitutional questions later isn't unique to it. This case serves as a reminder: What happened in rural Kansas happens elsewhere, and it can't be tolerated.
Thanks to Scott and Harlene, Kansans are a little more secure today. And thanks to the Constitution, the rest of us can be too — if we're willing to fight for it.
Samuel G. MacRoberts is the litigation director for the Kansas Justice Institute, and represented Scott Johnson and Harlene Hoyt in their Fourth Amendment lawsuit against the State of Kansas.