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OLC Files Two Separate Legal Challenges on Inspectors 'Ignoring the Constitution'

For Immediate Release | May 11, 2024

"What's your constitutional right to be here," asked a citizen. "I'm the building and zoning administrator," responded a western Saginaw county building officer. [See body cam recording]

That response is a common refrain deriving from a common misunderstanding of government officials whose jobs include inspecting properties and buildings for compliance with the hundreds of laws, regulations, and standards imposed on property owners throughout Michigan. Recently filed federal lawsuits are seeking to correct that lack of understanding.

The Hemlock, Michigan law firm of Outside Legal Counsel has filed two new federal civil rights lawsuits, on behalf of three clients, challenging the actions of three government inspectors who have failed to credit that our shared Constitutions actually limit their ability to conduct secret or unwelcomed inspections without permission of the property owners or a validly issued warrant. These lawsuits follow a prior case which found constitutional violations for a similar secret inspection.

The first suit comes from western Saginaw County where a homeowner was building a vegetable greenhouse. This greenhouse apparently annoyed the neighboring village officials of Merrill, Michigan who reported the partially built structure to the Jonesfield Township building and zoning administrator, Scott Crofoot. Instead of trying to determine if such was legal, he decided to conduct an unannounced after-business-hours site-visit. He appeared in plain clothes via his private vehicle, and did not even presented any official credentials. When Crofoot was immediately told to leave and put any concerns in writing, he turned extremely irate, the lawsuit alleges, and issued a stop work order. However, Michigan law does not permit the immediate issue of such an order on-the-spot. Crofoot re-entered the property to post the stop work order without permission and without a warrant. Contrary to Crofoot's incorrect assertion, Michigan law does not require a stop work order to ever be "posted" or attached to any building.

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The other lawsuit comes from northern Bay County where an earthen supply and excavating company operates a staging area for its offered sand, dirt, and landscaping materials. Without permission or even a call ahead of time, two inspectors from the Michigan Department of Environment, Great Lakes, and Energy trespassed upon the seven-acre parcel along M-13 to self-conduct an unneeded wetlands inspection. No violations were found. The secret inspection was only revealed after a follow up letter was sent to confirm the same.

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"This has become a serious but common problem," states OLC attorney Philip L. Ellison."Government inspectors think they can go wherever they want, whenever they want, and however they want, but the Constitution says otherwise."

The lawsuits, both filed in the United States District Court for the Eastern District of Michigan but assigned different judges, allege Crofoot, a former City of Saginaw building inspector, and ELGE officials Brian Marshall and Justin Smith each violated the Fourth Amendment when warrantlessly and permissionlessly entering privately-owned properties in Bay and Saginaw Counties.

The Fourth Amendment to the United States Constitutions provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The US Supreme Court has explained "in the case of most routine area inspections, there is no compelling urgency to inspect at a particular time or on a particular day" and "warrants should normally be sought [] after entry is refused." But many inspectors, including the three sued, have failed to heed that directive. Such actions destroy the privacy rights of citizens. Other federal courts since have confirmed that "securing either permission or a warrant" ahead of time "is a necessary step demanded by the Fourth Amendment" and is "not an empty formality."

No trial dates are scheduled as of yet.