Eleventh Circuit Ruling a Welcome Judicial Pushback against Criminal Enforcement of Regulations

strickly skillz

On a balmy late August day in Orlando, Florida, nearly a dozen Orange County police officers, some dressed in ballistic vests and masked helmets, swept into Strictly Skillz barbershop with their guns drawn. As their colleagues blocked off the parking lot entrances and exits, the officers declared that the shop was closed and ordered its patrons to leave, depriving the shop of business and perhaps deterring future patrons. Two barbers and the owner were handcuffed. A plain-clothed member of the raiding party demanded to see the barbershop’s business license.

Yes, you read that correctly. On August 21, 2010, a veritable SWAT team of heavily armed police conducted a warrantless inspection to check for barbers’ licensing violations. The Florida Department of Business and Professional Regulation (DBPR) inspector soon determined that Strictly Skillz barbers were properly licensed (which, as you’ll learn below, they already knew), so the police uncuffed the detained barbers and owner and left the shop.

The owner and three barbers sued a number of the officers involved for violating their Fourth Amendment rights against unreasonable search and seizure, and a federal district court denied the defendants’ motion for summary judgment on qualified immunity grounds. On September 16, the U.S. Court of Appeals for the Eleventh Circuit issued a strongly worded opinion affirming the lower court (Berry v. Leslie). The ruling provides a forceful reminder that the Fourth Amendment protects businesses (and their employees) from overzealous regulatory inspections.

Regulatory Enforcement & the Fourth Amendment. The U.S. Supreme Court held in New York v. Burger that administrative inspections of “closely regulated” industries could be performed without a warrant. The Court required that such inspections be “appropriately limited” in scope and execution, and not circumvent the Fourth Amendment’s requirement for reasonableness. Businesses rarely win challenges to warrantless administrative inspections, and successful suits against government law enforcement officers are equally uncommon. If the official shows he was acting within his discretionary authority, the burden shifts to the plaintiff, who must prove a constitutional violation and a causal connection between the defendant’s actions and that violation.

The Epitome of “Unreasonable. The Eleventh Circuit panel affirmed that the barber-shop owner and the three barbers met their burden and could proceed with their suit against the two officers. At the opinion’s outset, Judge Robin Rosenbaum noted that Berry marked the third time in two decades that the Eleventh Circuit had found the Orange County Sheriff’s Office had “conduct[ed] a run-of-the-mill administrative inspection as though it is a criminal raid.”

The facts supporting the district court’s finding that the police acted unreasonably were numerous and, as Judge Rosenbaum put it, “disturbing.” The August 21 raid was part of a larger administrative sweep of Orlando barbershops “located in predominantly Hispanic and African-American neighborhoods.” After a month of joint planning between the Sheriff’s Office and the DBPR, an inspector visited Strictly Skillz on August 19, under the guise of checking licenses, to gather information for the raid. The inspector found the licenses of the barbers and the shop to be valid.

That prior visit and the confirmation of valid licenses made the overzealous show of force on August 21, the court wrote, “all the more unreasonable” and “gratuitous at best.” The court also explained that the statute authorizing administrative inspections of businesses grants inspection authority to DBPR alone. Law enforcement can accompany DBPR inspectors, but Sheriff’s Office personnel cannot themselves conduct the inspection. “Despite this fact, OCSO officers did exactly that and more: they themselves opened drawers in barbers’ workshops and searched a storage closet in the back of Strictly Skillz.”

All Too Common. The use of heavily-armed officers in quasi-riot gear to check a hair-care license may seem absurd to the average person, as it certainly is. But as we’ve seen during WLF’s four decades of advocating for businesses’ civil liberties, it’s all too common. Federal agencies don’t hesitate to make a massive show of force when pursuing investigations of even the most obscure regulatory infractions. WLF clients, such as Massachusetts business owner Jim Knott and Louisiana’s Hubert Vidrine, fought back against environmental enforcement actions carried out by armed EPA agents. A June 2014 statement by Utah Representative Chris Stewart, who introduced a bill addressing agencies’ use of heavy weaponry, provides other examples and notes that even the Department of Education, the EEOC, and the Peace Corps maintain armed law enforcement units.

Rep. Stewart’s bill is certainly well-intentioned, but it is unlikely to ever become law. That’s one reason why decisions such as the Eleventh Circuit’s Berry ruling are so critically important. The decision may also encourage other victims of overzealous regulatory enforcement to fight back.

In order to maintain public order, law enforcement officials are rightly afforded a good amount of discretion. But when officials abuse that discretion and such abuse prevents the lawful conduct of business, the judiciary can act as an effective check, and the federal district and appellate court judges who did so in Berry deserve high praise. But other judges can only follow their lead if victims of overreaching assert their constitutional rights.

Also published by Forbes.com at WLF’s contributor page

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