Michigan Property Owner Appeals Warrantless EGLE Search Case to Sixth Circuit

Cameron Thomson has appealed to the United States Court of Appeals for the Sixth Circuit after a federal district court concluded that a Michigan environmental regulator’s warrantless entry onto his residential property could be found unconstitutional, yet dismissed his claims because of federal immunity doctrines that shield government officials and state agencies from judicial remedies.

The lawsuit arose after an employee of the Michigan Department of Environment, Great Lakes, and Energy entered the lakefront property without a warrant, photographed a newly constructed seawall, gathered evidence and measurements, and referred the matter for a violation investigation and criminal charges. The official relied on an inspection condition accepted through an online permitting portal by Thomson’s landscaping contractor, even though Thomson himself had not accepted the condition or authorized the contractor to admit government regulators onto his property.

In its July 15 opinion, the United States District Court for the Eastern District of Michigan largely rejected EGLE’s characterization of no Fourth Amendment violation. Judge David M. Lawson held that the EGLE official entered the constitutionally protected curtilage surrounding Thomson’s home to gather regulatory information and therefore conducted a Fourth Amendment search. It also rejected EGLE’s argument that the inspection occurred outside the property’s protected curtilage.

The Court further concluded that Thomson’s contractor did not possess common authority over the property merely because he had been hired to perform a short-term seawall project. It found that a reasonable jury could conclude that Thomson never authorized the contractor to consent to warrantless governmental inspections and that the government official failed to clarify the obvious uncertainty concerning the contractor’s authority before entering.

The Court ultimately stated that the record supported Thomson’s position that the warrantless inspection was unreasonable and violated his Fourth Amendment rights.

Despite those conclusions, the Court dismissed one portion of the case under qualified immunity because it found no earlier Supreme Court or published Sixth Circuit decision involving sufficiently similar permitting circumstances. The Court also dismissed Thomson’s official-capacity claim under state sovereign immunity, concluding that the federal court could not order prospective relief concerning EGLE’s continued and allegedly unlawful retention of the photographs and investigative information.

“This decision effectively finds that our Fourth Amendment position was right but then leaves the constitutional violation without a remedy,” said Philip L. Ellison, attorney from Outside Legal Counsel. “The case was dismissed because government protection doctrines stood between the right and its enforcement.”

The appeal will argue that the district court defined the clearly established right at an excessively narrow level. Thomson’s position is that existing Fourth Amendment law already made clear that a short-term contractor ordinarily does not possess general authority over a homeowner’s property and that government officials must resolve ambiguity about third-party authority before conducting a warrantless search.

Qualified immunity is a judge-created doctrine that generally prevents federal judgments against government officials unless a victim identifies earlier precedent placing the unlawfulness of the government official’s conduct beyond debate. It has been criticized by legal scholars across ideological lines. Professor William Baude has argued that qualified immunity lacks a sound legal foundation, while Professor Joanna Schwartz’s empirical research concluded that the doctrine fails to accomplish many of its asserted policy objectives.

State sovereign immunity has likewise been criticized for allowing governmental bodies to invoke constitutional structure as a defense against accountability for violating federal law. Scholars such as Erwin Chemerinsky have challenged the historical and constitutional foundations of the Supreme Court’s modern sovereign-immunity doctrine, while dissenting Supreme Court justices have disputed whether the doctrine accurately reflects the original constitutional design.

“These doctrines are often discussed as technical rules,” Ellison said. “But their real-world effect is straightforward: the court can find that the government violated the Constitution and still tell the citizen that no effective federal remedy is available. That gap between rights and remedies is neither fair nor consistent with the basic purpose of civil-rights law.”

The appeal presents a recurring constitutional question for Michigan property owners: whether participation in a regulatory permitting process gives government officials authority to enter residential property without a warrant based on consent supposedly supplied by a private contractor. Property owners regularly maintain that authorizing a contractor to apply for a permit is not the same as authorizing that contractor to waive the property owner’s Fourth Amendment rights.

“The government cannot outsource constitutional consent,” Ellison said. “A contractor hired to build a seawall does not become the constitutional gatekeeper for the homeowner’s land. Authority to submit paperwork is not authority to admit government investigators onto residential property.”

The appeal has been filed in the United States Court of Appeals for the Sixth Circuit.