What is considered harassment by code enforcement

Code enforcement officers inspect homes and commercial buildings to ensure local laws and zoning ordinances are being followed. But what do you do if the code inspectors themselves are not following the law?

You may be able to sue a code enforcement officer, investigator, or inspector in a civil action for discrimination or entering your property without permission — but winning will be a challenge. You have the right to be free from discriminatory code enforcement if you are a member of a legally protected class. You also have the right to be free from unauthorized searches of your property unless the code official has a warrant. If a code enforcement officer violates your rights, you would have the basis for a lawsuit.

Suing the code official directly, though, may not be your best bet. Like police officers, code enforcement officers have a legal defense (qualified immunity) and generally cannot be sued unless a court has previously ruled that what you say they did was illegal.

You may have better luck suing the local government the code enforcement officer works for. Local governments cannot rely on qualified immunity. You would only need to show that your rights were violated by a code enforcement officer in the course of doing their job.

These types of claims are known as civil rights actions. They are complicated and hard to win. You may benefit from consulting with an experienced civil rights attorney who can give you legal advice about your specific situation and help you decide if a lawsuit is your best option.

What Is A Code Enforcement Officer?

One of the primary functions of local government is meeting the needs of its citizens. This includes setting standards for things that can impact public health and well-being like zoning and building codes, public health, public safety, fire safety, consumer protections, and business practices, so that people can trust that places and services are safe. To ensure that these municipal codes are being met, local governments hire people who inspect, investigate, and enforce city and county ordinances.

These people – known as code enforcement officers, city inspectors, or investigators – patrol for possible ordinance infractions and investigate complaints as part of their code enforcement job. To do their jobs, code enforcement officers are generally allowed to enter both commercial and residential property for their inspections. However, that doesn't mean that they have free reign to go wherever they want or to do whatever they want whenever they want on your private property fishing for code violations. Ensuring code compliance doesn't trump your rights.

Code Enforcers Can't Violate Your Rights

Let's deal with two different reasons why you might want to sue a code enforcement officer. Our first is for illegal discrimination; our second, for entering your property without a warrant.

Illegal Discrimination

Under federal law, you have the right not to be discriminated against based on your membership in what's called a “protected class." Protected classes include race, sex, national origin, religion, disability, age, and likely sexual orientation and gender identity (the law isn't clear).

If the government discriminates against you for one of these reasons, they violate federal law. The government, for example, cannot target Latino mobile homeowners for building code inspections (this happened in a real case).

Entering Your Property Without Permission

The Fourth Amendment of the U.S. Constitution grants you the right to be free from “unreasonable searches and seizures." This right generally protects you from having law enforcement officers enter your property unless they have a warrant based upon “probable cause" (generally, a reasonable basis to believe a crime is being or has been committed).

There are a few exceptions to the warrant requirement. For example, if a dangerous condition can be seen without entering your property, a code enforcement officer can cite you for the violation.

Similarly, under what's called the “administrative search exception," government investigators conducting searches pursuant to a regulatory scheme — which a code enforcement officer is and does — can enter and search certain property so long as they adhere to reasonable legislative or administrative standards. Typically, this applies to commercial buildings. It's more of a legal gray area if a building inspector is entering your home.

States have created these standards by establishing a procedure for obtaining what's called an “administrative warrant" or an “inspection warrant." A code enforcement officer needs to follow proper procedures and get an administrative warrant before they can enter your property and cite you as an alleged violator. You as the property owner have rights.

You May Have a Civil Rights Lawsuit Under Section 1983

If a code enforcement official, such as a code inspector or building inspector, violates your rights, you may be able to sue them under federal law. 42 U.S.C. section 1983 creates a civil rights claim you can file in either state or federal court against a code enforcement officer for violating your rights.

In order to prevail in court, you need to show two things:

• The code enforcement officer violated your federal rights
• The code enforcement officer was acting “under color of law"

We have already discussed two rights you have, which a code enforcement officer might violate. The phrase “color of law" refers to the conduct at issue: the officer must be acting on behalf of the state. This generally happens if the officer is doing their job for purposes of their job at the time they violate your rights. If they are off the clock, they wouldn't be acting on behalf of the state and you wouldn't be able to file a section 1983 claim.

Qualified Immunity

The problem with suing a code enforcement officer, however, is that they have a powerful defense to a section 1983 lawsuit called qualified immunity. A code official is generally immune from suit – that means they can't be sued – unless they violate a “clearly established right" of which a reasonable person would have known.

Courts have construed the phrase “clearly established right" very narrowly. You essentially need to show that controlling authority (a higher court in your jurisdiction) has previously ruled that virtually the same conduct was illegal. This can be really hard to do, making it particularly difficult to win a case against the code enforcement officer themselves.

Sue the Local Government Instead

But the local government itself is not entitled to rely on qualified immunity. You would be able to sue the local government that employs the code enforcement officer if you can show that the code enforcement officer, while following enforcement procedures according to the city code, violated your rights.

You Don't Have to Sue – You Have Other Options

You don't have to file a lawsuit, however. Your first is to challenge the issuance of the citation before your local code enforcement board. The enforcement procedures vary depending on where you are, but you may be able to respond to the alleged violation by raising the violation of your rights as a defense to the citation. You don't have the same rights in an administrative enforcement proceeding as you would in a criminal proceeding, but you may be able to persuade the code officers to drop their enforcement action.

You could also file an administrative complaint. The procedures for this vary from municipality to municipality. Generally speaking, you submit a formal complaint with the code officer's employer, just like you would submit complaints against individual police officers with the police department. A supervisor will consider the complaint and get back to you within a reasonable time period (like 14 business days) with their determination.

You may be able to get them to drop the citation without having to go through an enforcement proceeding. That way, you may avoid having to pay a civil penalty for a potential violation. You will have less luck, however, if you have been cited for repeat violations.

A Civil Rights Lawyer Can Help

These civil rights cases can seem straightforward, but unfortunately they can get very complicated quickly. They are dependent upon the specific facts of any given case and, if qualified immunity is involved, you have a fair amount of legal research in front of you before you can even file your lawsuit.

An experienced civil rights attorney would be able to advise you about your particular situation and help you decide whether you have a valid legal claim that is worth pursuing in court. There are also lawyers who focus on state and local law who may be able to help you when dealing with your local government.

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