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City of Los Angeles v. Patel

Concerning Whether an Individual Can Assert a Facial Challenge Under the Fourth Amendment to a State Ordinance Requiring Hotels to Disclose Guest Information to Police Without a Warrant

Introduction

At issue in this case is whether a city can authorize the police to routinely inspect hotel guest registries without any individualized suspicion or judicial supervision. Los Angeles Municipal Code § 41.49 implicates not only the business practices of hotels, but also the privacy and First Amendment interests of hotel guests who frequently gather at hotels for political and religious purposes.

The Supreme Court long ago recognized that the freedom of individuals to associate with others of like mind is a core First Amendment right; the abridgment of this right occurs where the government seeks to identify people who participate in these activities. This ordinance, which grants local officials the authority to inspect guest registries of hotels in Los Angeles, directly implicates the freedom to participate in political, social, and religious associations that rely on hotels to facilitate their meetings and conferences. Given the significant First and Fourth Amendment interests at stake in the collection, retention, and inspection of these sensitive guest lists, the Court should affirm the judgment of the Ninth Circuit and find that LAMC § 41.49 is facially unconstitutional.

Questions Presented

(1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment.

(2) Whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

Top News

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  • Supreme Court to Hear Two Fourth Amendment Cases: The Supreme Court has agreed to review two Fourth Amendment car search cases. In Collins v. Virginia, the Court will decide whether police can search a vehicle parked in the driveway of a private home without first obtaining a warrant. In Byrd v. United States, the Court will decide whether a person driving a rental car loses their expectation of privacy in the vehicle solely because they are not the official driver on the rental agreement. The Court is already set to hear Carpenter v. United States this fall, a major Fourth Amendment case about warrantless searches of cell phone location data. EPIC filed a "friend-of-the-court" brief in that case urging the Court to extend Constitutional protection to cell phone data. EPIC regularly files briefs with the Supreme Court arguing for greater Fourth Amendment protections, including in Utah v. Strieff, Los Angeles v. Patel, and Riley v. California. (Sep. 28, 2017)
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    Congress has passed the Consumer Review Fairness Act, a law protecting consumers' right to post negative reviews without fear of retaliation. The bipartisan measure would make it illegal for companies to include non-disparagement clauses in consumer contracts, or to impose penalties or fees for critical reviews. The Federal Trade Commission will enforce the new law, which now awaits President Obama's signature. "By ending gag clauses, this legislation supports consumer rights and the integrity of critical feedback about products and services sold online." said Senate Commerce Committee Chairman John Thune. EPIC has long supported free speech and access to information online.
  • Supreme Court Strikes Down Warrantless Searches of Hotel Guest Registries » (Jun. 22, 2015)
    The Supreme Court ruled today that a Los Angeles ordinance authorizing warrantless inspections of hotel guest registries is unconstitutional because it failed to provide for judicial review. The ordinance required all hotels in Los Angeles to collect detailed information on their guests for police inspection. Writing for the Court in Los Angeles v. Patel, Justice Sonia Sotomayor explained that with only a few exceptions, "searches conducted outside the judicial process" are "per se unreasonable." EPIC filed an amicus brief in the case, joined by thirty-six technical experts and legal scholars, arguing that "guest registries should not be made routinely available to the police for inspection, and they should not be collected or retained for that purpose." EPIC traced the history of US hotels as meetings places for organizations and cited the landmark Supreme Court case NAACP v. Alabama.
  • Supreme Court to Consider Hotel Records Privacy Case, EPIC Amicus Cites Constitutional Interests » (Mar. 2, 2015)
    The Supreme Court will hear arguments this week in Los Angeles v. Patel, concerning the warrantless inspection of hotel records by the police. Hotel operators are challenging a city ordinance that requires the collection for police inspection of names, drivers licenses, vehicle information, payment information, and length of stay for every hotel guest. EPIC's brief, joined with thirty-six technical experts and legal scholars, argued that “individuals have a constitutional right to gather at hotels for political and religious purposes without being subject to police inspection.” EPIC traced the history of US hotels as meetings places for organizations and cited the landmark Supreme Court case NAACP v. Alabama.
  • EPIC Defends Political Gatherings at Hotels in Brief for Supreme Court » (Jan. 30, 2015)
    In an amicus brief to the Supreme Court for Los Angeles v. Patel, EPIC said the issue is "whether a city can authorize the police to routinely inspect hotel guest registries without any individualized suspicion or judicial supervision." Citing the famous civil rights case NAACP v. Alabama, EPIC noted the long history of political and religious organizations gathering at hotels in the United States. EPIC wrote, "individuals have a constitutional right to gather at hotels for political and religious purposes without being subject to police inspection." EPIC said, "guest registries should not be made routinely available to the police for inspection, and they should not be collected or retained for that purpose." Thirty-six legal scholars and technical experts supported the EPIC amicus. EPIC is a leading expert in privacy and technology, and regularly files amicus briefs in appellate cases concerning emerging civil liberties issues.
  • Supreme Court to Rule on Privacy of Hotel Records » (Oct. 20, 2014)
    Today the Supreme Court agreed to hear Los Angeles v. Patel, a challenge to a local ordinance that allows police to inspect hotel guest registries without a warrant or judicial supervision. A federal appeals court ruled that the LA law was "facially" unconstitutional because the authority could violate the Fourth Amendment. The Supreme Court will consider both the scope of privacy protections for hotel guests and also whether the Fourth Amendment prohibits laws that allow unlawful searches. The second issue has far-reaching consequences because many recent laws authorize the police searches without judicial review. Thus far, courts have only considered "as applied" challenges on a case-by-case basis. EPIC will likely file an amicus brief in the Supreme Court case in support of the decision of the federal appeals court. For more information, see EPIC: Los Angeles v. Patel and EPIC: Amicus Briefs.

Background

This case involves a Fourth Amendment challenge, brought by a group of hotels in Los Angeles, to a city ordinance that requires hotels to maintain detailed guest registries and provide them for police inspection without a warrant or any judicial review. The City of Los Angeles has appealed the Ninth Circuit's ruling that the ordinance is facially unconstitutional, arguing in part that the ordnance can only be challenged as applied to a particular hotel. This procedural issue has far-reaching consequences because many recent laws authorize the police searches without judicial review. Fourth Amendment cases typically arise in in the form of "as applied" challenges in criminal and civil cases, but some laws impose sweeping data collection and retention requirements that raise significant Fourth Amendment issues.

Los Angeles Municipal Code § 41.49 requires hotel and motel operators to keep records with specified information about their guests. Plaintiffs, motel owners in Los Angeles, challenge a provision of § 41.49 authorizing warrantless, onsite inspections of those records by the LAPD. The code states the list "shall be made available to any officers 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." The hotel owner sued the city on the ground that this code section was facially unconstitutional under the Fourth Amendment.

The trial court first held that the ordinance did not violate the Fourth Amendment, and a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld that decision. The Ninth Circuit subsequently granted the plaintiff's request for rehearing en banc, and the en banc panel reversed the lower court ruling. The Court held that "[a] police officer's non-consensual inspection of hotel guest records plainly constitutes a 'search' under either the property-based approach of Jones or the privacy-based approach of Katz." Next, the Court found that while it ordinarily would balance the need to search against the invasion which the search entails, that balance has already been struck by the Supreme Court. The Ninth Circuit states that under Supreme Court precedent, "to be reasonable, an administrative record-inspection scheme need not require issuance of a search warrant, but it must at a minimum afford an opportunity for pre-compliance judicial review, an element that § 41.49 lacks," and that the ordinance was therefore facially unconstitutional. The Supreme Court agreed to hear the case on October 20, 2014.

EPIC's Amicus Brief

Hotel patrons have distinct privacy and free assembly interests in their personally identifiable information that is collected and disseminated to the police. Political groups, religious organizations, and social activists regularly gather at hotels in the United States to meet, to express opinions, and to organize. The collection of guest registry information is akin to the collection of membership lists for political and religious organizations, which this Court has found implicates significant First Amendment interests. NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958). Given the significant First and Fourth Amendment interests at stake in the collection, retention, and inspection of these sensitive guest lists, the Court should affirm the judgment of the Ninth Circuit and find that LAMC § 41.49 is facially unconstitutional.

I. Guest Privacy is Critically Important for Hotels, and the Unnecessary Retention of Guest Data Increases Privacy and Data Security Risks

Privacy is of the utmost importance to hotels, which consider themselves “trustees and guardians of guest privacy since the earliest inns.” Mark G. Haley & Jungsun Kim, Principles of Privacy: Defining & Implementing Sound Privacy Practices in Hospitality (2d. ed. 2009). Section 41.49 unjustifiably exposes sensitive consumer data to the risk of data breaches and frustrates the ability of hotels to provide their guests proper data security. This ordinance breaks the bond of trust between hoteliers and their guests, and the routine retention of guests’ personal information creates significant risks of financial fraud and identity theft. Because this requirement exists only to enable routine police inspections of guest registries, it is imperative that the Court considers the interests of hotels and their guests in minimizing the unnecessary collection of guests’ personal information.

II. Routine Disclosure of Guest Registries to the Police Implicates Protected First Amendment Interests

The routine inspection of hotel guest registries chills activity protected by the First Amendment. Since this country’s founding, countless political, religious, and social activist organizations have gathered at hotels to organize, share ideas, and coordinate their constituents. That tradition continues to this day. In 2011, the National Association for the Advancement of Colored People (NAACP) brought more than 5,000 members to Los Angeles for its annual convention, and those members were encouraged to stay at four hotels in the downtown Los Angeles area. More than 4,000 attended the 2014 Annual Conference of the National Council of La Raza at the Los Angeles Convention Center, with attendees staying at the JW Marriott and other downtown hotels. The Los Angeles ordinance impinges upon the freedom of those who participate in these First Amendment-protected activities.

III. The Court Has Found That Laws Inhibiting the Freedom of Political, Religious, and Social Organizations Must Survive Exacting Scrutiny

This Court has made clear that individuals “have a right to privacy of belief and association.” Doe v. Reed, 561 U.S. 186, 206 (2010). A law purporting to compel disclosure of associational information is subject to “exacting scrutiny.” Id. at 196. Hotel patrons in Los Angeles face the persistent specter of governmental inquiry into their associational ties. By mandating the collection of guest registry information and providing the police with the authority to inspect registries without warrant or restriction, LAMC § 41.49 provides the mechanism to identify participants in political, social, and religious conferences, and threatens to chill these associational freedoms.

IV. A Facial Challenge Is the Proper Vehicle to Evaluate This Ordinance Because It Implicates the Interests of Hotel Patrons

A facial challenge is appropriate in this case to consider the validity of the ordinance on its face because, as the City described, the purpose of the regulation is not to gather evidence but to “discourage” the use of hotels and motels by certain patrons. L.A., Cal., Ordinance 17796 (Oct. 6, 2006). This implicates the associational privacy of those guests engaged in First Amendment-protected activities who may wish to preserve their anonymity and may also deter participation in political gatherings where anonymity is an important or necessary element. As the Court explained in Doe v. Reed, a facial challenge considers not only the harm that would be suffered by the individual plaintiffs, but also the harm that would be suffered by others subject to the government regulation. See 561 U.S. 186, 200 (2010). For this reason, a facial challenge is particularly appropriate where a law “‘on its face impose[s] a severe burden,’— compelled disclosure of privacy in political association protected by the First Amendment.” Doe v. Reed, 561 U.S. at 230-31 (Thomas, J., dissenting).

Legal Documents

United States Supreme Court

United States Court of Appeals, Ninth Circuit, en banc

  • Opinion, Patel v. City of Los Angeles, 738 F.3d 1058 (9th Cir. 2013) (en banc).

United States Court of Appeals, Ninth Circuit

  • Opinion, Patel v. City of Los Angeles, 686 F.3d 1085 (9th Cir. 2012).

United States District Court for the Central District of California

Relevant Publications

  • Julie E. Cohen, A Right to Read Anonymously: A Closer Look at “Copyright Management”; in Cyberspace, 28 Conn. L. Rev. 981 (1996).
  • Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America (2001).
  • Jeffrey Rosen, Symposium Keynote Address, 65 Rutgers L. Rev. 965, 976 (2013).
  • Ian Kerr, Carole Lucock, & Valarie Steeves, Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society (2009).
  • Anita Allen, Unpopular Privacy: What Must We Hide? (2011).
  • Anita L. Allen, Associational Privacy and the First Amendment: NAACP v. Alabama, Privacy and Data Protection, 1 Ala. C.R. & C.L. L. Rev. 1, 3 (2011).
  • Jeffrey Rosen, Op-ed, Protect Our Right to Anonymity, N.Y. Times, Sept. 12, 2011, at A31.

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