Commentary: Constitution protects our right to be left alone

Privacy frees a person from the judgment of others and gives him the freedom to think, innovate, relax, question, celebrate or despair with the certainty that no uninvited guest will learn of his thoughts or deeds. Privacy is the license to do the unpopular and the liberty to be an individual.

Because privacy, particularly privacy from the government, is so essential to a person’s well being, Red Wing should ditch the 2005 revisions it made to its Housing Maintenance Code as well as its Rental Licensing Code. Red Wing should leave tenants and landlords alone and respect their privacy.

That’s the message that Bob McCaughtry wants the City Council to heed.

McCaughtry is a landlord who has rented to hundreds of tenants over the past 30 years and gives them the best possible properties for the rent they pay. His formula makes sound business sense for his 20 units as tenants stay with him an average of two years, with two tenants who have stayed with him for more than nine years, far longer than the national average of approximately 110 days.

McCaughtry, along with 10 other landlords and tenants, has been litigating the constitutionality of Red Wing’s codes since November 2006. So far, they are winning the legal battle.

Just last month, Judge Timothy Blakely of the District Court in Red Wing denied that city’s application for warrants to search 47 rental homes. Blakely’s ruling of May 19 was based on the fact that the city classifies data and photographs from inspections of rental homes as public information and the city has no means to address “legitimate modern privacy concerns.”

When balancing tenants and landlords’ privacy rights against the city’s alleged interest in protecting health and safety, the judge rightly came down on the side of the residents’ privacy. This is because the city may integrate the highly personal data and photographs into its computer system, available “for the world to see on the Internet.”

Looking beyond this latest victory for privacy, McCaughtry is convinced that a state court judge will eventually rule that Red Wing’s codes violate the constitutional protection of privacy for two reasons.

First, the city’s inspection regime is unneeded and, in reality, is a government-job-creating solution in search of a problem. There is no evidence that significant health and safety problems exist in Red Wing’s rental properties. The city has received only 12 complaints from tenants in the past 13 years. Even the city’s planner admits that fewer than 5 percent of rental units are in any kind of disrepair.

It just does not make sense to violate the privacy rights of more than 95 percent of renters and landlords in Red Wing when less than 5 percent of the units have even the slightest problems that the city can address by beefing up its enforcement of the state housing code. Thus, the city has no legitimate basis for violating the privacy of the vast majority of tenants and landlords in the 1,500 rental homes in Red Wing.

Secondly, the city’s inspection regime lacks legislative and administrative standards as to how inspectors perform searches once they are inside a person’s home.

Such standards are constitutional requisites but they don’t exist in Red Wing’s inspection regime. Inspectors have unfettered discretion to perform inspections any way they wish without any standards or limits. Far from just focusing on structural issues, piping or faulty wiring, they may inspect everything and anything based entirely on their own personal whims.

One inspector not only inspects the interior of kitchen cabinets, he searches bedroom closets, bathroom vanities and refrigerators. He inspects for general housekeeping and has written up violations for dusty windowsills and dirty stove tops.

Such intrusions, under the guise of an inspection, have nothing to do with health and safety and everything to do with violating the renter’s personal sphere of privacy.

McCaughtry suspects the city’s real intent is to use inspections to gather information about crime or to keep renters out of Red Wing, and they may be the first step to searching owner-occupied homes. Regardless of the city’s true motivations, McCaughtry is committed to continuing to fight the city on behalf of tenants and fellow landlords’ privacy rights. He will not stop until the city voluntarily or by court order ditches its unnecessary and unconstitutional inspection regime.

Privacy has never had a better friend in Red Wing than Bob McCaughtry.

Ted Peilen is a senior at the Blake School in Hopkins, Minn., and an intern at the Institute for Justice Minnesota Chapter, the law firm representing McCaughtry and others in the challenge against Red Wing’s rental inspection codes.

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