There were some interesting cases from the Supreme Court yesterday. No, not gay marriage or Obamacare. But the Court ruled in favor of business privacy (against blanket government intrusion) and in favor of a jail inmate who had been badly handled by deputies. There’s also a potentially important regulatory takings case. I want to look at the first one for now. Los Angeles v. Patel involved an LA ordinance that required that hotel owners keep records of specified information about hotel guests, and that hotel owners must make these records “available to any officer of the Los Angeles Police Department for inspection” on demand. Several hotel owners sued, making a facial challenge to the ordinance on Fourth Amendment grounds. Today, the Court ruled (5-4, opinion by Sotomayor) that the statute was on its face unconstitutional because it provided no way to challenge an officer who showed up with a records demand.
The information in the records is quite extensive:
“The guest’s name and address; the number of people in each guest’s party; the make, model, and license plate number of any guest’s vehicle parked on hotel property; the guest’s date and time of arrival and scheduled departure date; the room number assigned to the guest; the rate charged and amount collected for the room; and the method of payment. Guests without reservations, those who pay for their rooms with cash, and any guests who rent a room for less than 12 hours must present photographic identification at the time of check-in, and hotel operators are required to record the number and expiration date of that document. For those guests who check in using an electronic kiosk, the hotel’s records must also contain the guest’s credit card information. This information can be maintained in either electronic or paper form, but it must be “kept on the hotel premises in the guest reception or guest check-in area or in an office adjacent” thereto for a period of 90 days.” (internal citations omitted).
This is a non-trivial amount of information (though you have to cough it up pretty much every time you check into a hotel these days). The objection in the case wasn’t to the data requirements, but that the ordinance provided that hotel owners who failed to make it available on demand could be both fined and imprisoned. That is, the hotel owners did not challenge the recordkeeping requirement – they challenged whether or not they should be allowed an opportunity to object to the request without ipso facto violating the ordinance.
The case is significant for two reasons. First, the Court ruled that Fourth Amendment facial challenges are not “categorically barred or especially disfavored.” In other words, it is ok to challenge a statute on Fourth Amendment grounds, without waiting for a specific application of it. The City had argued that a facial challenge required proving that the statute would be invalid in every imaginable application, and that such a standard would fail, since there would clearly be no problem in emergencies, when hotel owners consented, etc. The Court noted that the point was to look at situations where the statute was the reason the search happened:
“Similarly, when addressing a facial challenge to a statute authorizing warrantless searches, the proper focus of the constitutional inquiry is searches that the law actually authorizes, not those for which it is irrelevant.If exigency or a warrant justifies an officer’s search, the subject of the search must permit it to proceed irrespective of whether it is authorized by statute. Statutes authorizing warrantless searches also do no work where the subject of a search has consented. Accordingly, the constitutional “applications” that petitioner claims prevent facial relief here are irrelevant to our analysis because they do not involve actual applications of the statute.”
Second, the Court held that there had to be some moment where the hotel owners could challenge the legitimacy of a search, which meant that officers had to show up with more than a "demand." These standard for review could be low – a subpoena, for example, would do – but since hotel owners could be arrested on the spot for refusing to turn over the records, there was no moment even to try to quash a subpoena. Sotomayor was also careful to limit the reach of the decision; the hotel operators conceded that a subpoena was adequate, and that most of the time they wouldn’t challenge it. So an actual challenge would be rare:
“In those instances, however, where a subpoenaed hotel operator believes that an attempted search is motivated by illicit purposes, respondents suggest it would be sufficient if he or she could move to quash the subpoena before any search takes place. A neutral decisionmaker, including an administrative law judge, would then review the subpoenaed party’s objections before deciding whether the subpoena is enforceable. Given the limited grounds on which a motion to quash can be granted, such challenges will likely be rare. And, in the even rarer event that an officer reasonably suspects that a hotel operator may tamper with the registry while the motion to quash is pending, he or she can guard the registry until the required hearing can occur, which ought not take long” (internal citations omitted).
There were two dissents, one by Justice Scalia and one by Justice Alito. Alito argues against the reasoning in the previous paragraph by producing what is basically a list of times when access to the records would be essential to stopping something bad (like child sex trafficking), and some degree of speed would be of the essence. I may lack imagination, but I don’t see how it wouldn’t be possible to get a warrant in all of those cases, or to make an exigent circumstances argument.
In his dissent, Scalia argues that hotels are sufficiently regulated that the standards for review should be more relaxed. Sotomayor lists the four industries that have been subject to such regulation in the past: liquor sales, firearms dealing, mining, and junkyards. She concludes that hotels clearly don’t belong on the same list, since “nothing inherent in the operation of hotels poses a clear and significant risk to the public welfare” (I scratched my head over the same one you just did: apparently the junkyard case dates to 1987, and proposes that “Automobile junkyards and vehicle dismantlers provide the major market for stolen vehicles and vehicle parts”). Although hotels are regulated (and here she debates Scalia at some length), the regulations aren’t pervasive enough to justify inclusion in the same list, and even if they were, there would still need to be Fourth Amendment review.
Scalia’s concludes that hotels have been closely regulated for a long time, and that their business entails accepting “unique public duties.” Thus:
“The parties do not dispute the governmental interests at stake. Motels not only provide housing to vulnerable transient populations, they are also a particularly attractive site for criminal activity ranging from drug dealing and prostitution to human trafficking. Offering privacy and anonymity on the cheap, they have been employed as prisons for migrants smuggled across the border and held for ransom, see Sanchez, Immigrant Smugglers Become More Ruthless, Washington Post, June 28, 2004, p. A3; Wagner, Human Smuggling, Arizona Republic, July 23, 2006, p. A1, and rendezvous sites where child sex workers meet their clients on threat of violence from their procurers” (I include the cites because I think it’s interesting how Scalia evidences the claim)
Reading the dissents, I think a couple of things about the case become at least somewhat into focus. First, the fundamental difference between the majority opinion and the dissents is an image of what a hotel is. For Sotomayor and the majority, a hotel is many things to many people. This of course includes a place where illicit activity can be conducted, but that doesn’t constitute enough of what the hotel is to justify this sort of regulation. For Scalia and Alito, the hotel is frequently a place for illicit activity, enough so that that’s the image that made it into their decision. In other words, the decision is about the social ontology of hotels as much as it is anything else, and the debate is one deeply involved in cultural cognition.
We see this sort of thing all the time; if you image firearms dealers as the place where white supremacists get their guns to massacre black churchgoers, then you’re going to favor more regulation than the guy on Fox News who apparently claimed that things would have been better if only the pastor also had a gun. The last year or so of police shootings, as well as the Charleston terrorist attack should illustrate the point with regard to race, as does the implicit bias literature. The hotels case shows that the argument generalizes. A good part of people’s response to regulations (and law more broadly) is in their image of what is being regulated, and as the Cultural Cognition project at Yale has been documenting, you can’t generally reason your way through a cultural cognition debate. Several years ago, the Court had put the dashboard cam video of a police chase online, on the grounds that it would speak for itself and show that a motorist had behaved sufficiently dangerously that officers were justified in forcing him off the road, instigating a crash that left him paralyzed. Turns out that it depended on who you were what you saw.
Finally, and the reason I’m blogging about the case, is that we live in an age where the government frequently asserts the right to collect third-party business records on demand as general part of law enforcement. I don’t know if this case has much precedential value, given the number of times Sotomayor said the ruling was narrow, but it’s at least a small stand against the principle that private records must always already be ready-to-hand for law enforcement, and thus a small chip in the armor of the emerging surveillance state.