Regular readers may recall my blog post last year on the panel decision in Patel v. City of Los Angeles, involving a facial challenge to a Los Angeles regulation requiring that LA hotels shall make hotel guest records “available . . . for inspection” by the LAPD. The 2-1 panel decision ruled that a facial challenge couldn’t succeed in these circumstances. On December 24th, the en banc court issued a new decision available here, which concluded by a 7-4 vote that a facial challenge is appropriate and that the regulation violates the Fourth Amendment rights of hotels.
The Patel case is more about a technical issue of facial vs. applied challenges than Fourth Amendment law specifically; the primary issue on which the judges disagreed was whether a facial challenge was proper. Still, for the procedure nerds out there, I figured I would offer some thoughts. [SEE UPDATE]
The challenged regulation tells all L.A. hotels that they need to collect registration information about customers with the following instructions, violations of which are a misdemeanor:
The record shall be kept on the hotel premises in the guest reception or guest check-in area or in an office adjacent to that area. The record shall be maintained at that location on the hotel premises for a period of 90 days from and after the date of the last entry in the record and shall be made available to any officer of the Los Angeles Police Department for inspection. Whenever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.
In this case, hotel owners have sued the City of LA seeking to enjoin the enforcement of the phrase “shall be made available to any officer of the Los Angeles Police Department for inspection,” and seeking a declaratory judgment that this phrase violates the Fourth Amendment. The hotel owners are not claiming that the law was enforced against them, or that their Fourth Amendment rights were violated. Instead, they are bringing a facial challenge against the law on Fourth Amendment grounds. The parties have stipulated that the challenged phrase allows the police to inspect the hotel records at any time without consent or a warrant. The gist of the plaintiff’s argument is that the challenged phrase violates the Fourth Amendment on its face because the inspections it authorizes will be unreasonable searches that the Fourth Amendment prohibits.
In an en banc opinion by Judge Watford, the Ninth Circuit agrees and holds that the regulation is unconstitutional. Gaining access to a hotel’s records will be a search, Watford reasons, because it requires access to the hotel’s property and its private records. And it will be an unreasonable search because the most generous Supreme Court caselaw that might apply to such searches, the caselaw on administrative subpoenas, requires a person who receives such subpoenas to at least have an opportunity to challenge them in court. Because the California statute has no explicit provision allowing for judicial review before criminal charges can be brought, the regulation will be unconstitutional whenever it is followed on its face. Granted, there will be some circumstances in which access to the hotel’s private records will not be an unconstitutional search. Perhaps the hotel left the records out in the lobby, or perhaps there will be exigent circumstances. But according to the majority, in those cases the government won’t actually be relying on the regulation to get the records.
Judges Tallman and Clifton filed dissents. Judge Tallman’s dissent focused on whether a facial challenge was proper, and I agree with Judge Tallman that it was not. In my view, the basic difficulty is that the regulation does not say what the police can and can’t do. Instead, the regulation is a vague directive that certain created records “shall be made available” to the police. We don’t know what the circumstances are in which those records shall be be made available, or even what the passive phrase “shall be made available” means. Under Salerno, a facial challenge is only allowed when every application of the regulation would be unconstitutional. It seems to me that the majority tries to get around this problem by playing with categories. Under the majority opinion, hypothetical fact patterns in which the Fourth Amendment would not be violated are deemed cases in which the regulation would not be relied upon. With those hypotheticals carved out, the regulation is deemed to only apply when the Fourth Amendment would be violated. The court can then say that every application of the regulation involves an unconstitutional search and the regulation can be struck down on its face under Salerno. But this strikes me as in clear tension with the Supreme Court’s approach in Sibron, so I don’t think a lower court is supposed to do that.
Anyway, I have no love for the LA regulation that was struck down. It is terribly drafted, and in an appropriate as-applied challenge could have serious problems. And I realize that a lot of VC readers dislike judge-limiting doctrines such as limits on facial challenges. But I don’t think a facial challenge should have been allowed in this case, so I tend to think that Judge Tallman’s dissent had it right. Incidentally, for some related thoughts, see my article The Limits of Fourth Amendment Injunctions.
UPDATE: I probably should have also pointed out the uncertainty about whether or when Fourth Amendment facial challenges are permitted, something that the majority opinion does not raise. As I pointed out in my blog post last year, Sibron v. New York suggests that courts can’t consider any Fourth Amendment facial challenges at all except for statutes governing the issuance of warrants. I tend to think that’s the best reading of Sibron. But there’s at least a decent argument that the Salerno standard should apply instead, allowing facial challenges when all applications of the statute or regulation are unconstitutional. The argument follows in part from one or two cases in which the Supreme Court entertained what appears to be something like a facial challenge, albeit without pausing to consider whether such challenges were proper. I tend to think that those cases considered the challenges improperly in light of Sibron, and that Sibron should control, but I acknowledge that there’s at least room to argue that Salerno should apply instead. Granted, Salerno itself is on thin ice: The Supreme Court acts like it has been overruled. But the Court has not (yet) overruled Salerno, so it strikes me as a plausible approach for a lower court to follow. In any event, this post accepted for the sake of argument that the Salerno standard controlled. If Sibron is the standard, on the other hand, then no facial challenge can be brought because the statute does not concern the issuance of warrants.