By Anthony Cacciato
RIVERHEAD – Earlier this week, I stood before the County Legislature in strong opposition to Introductory Resolution (IR) 1393, sponsored by Minority Leader Jason Richberg (D-West Babylon), a resolution which will violate the protections against warrantless searches and seizures guaranteed within the Fourth Amendment.
This resolution requires certain businesses to turn over security footage to law enforcement within 24 hours if a felony has been committed on their property, or face fines. Critically, this resolution creates this mandate without requirements for a valid court-ordered warrant, essentially creating a mechanism for law enforcement to conduct a warrantless seizure. Ensuring the safety and wellbeing of Suffolk County residents is a primary responsibility of the County government, but so is the protection of their constitutionally guaranteed rights.
The resolution creates an unprecedented mandate for the thousands of small businesses across Suffolk County to be compulsory agents of the government without their consent, simply because they are “open to the public.” It also places this requirement on any business which has ten or more employees. In Suffolk County, that is effectively every store from delis to department stores, covering almost every business in the county. Even if they are open to the public, the businesses operate on private property and are covered by the protections of the Fourth Amendment.
This not only affects the business owners but can deeply harm the privacy rights of the law-abiding citizens who patronize these businesses, making them subject to warrantless surveillance by the County government. Aside from turning private businesses into a county-wide expansion of government surveillance, the resolution builds a mechanism for law enforcement to bypass a warrant by turning voluntary cooperation into a mandate backed by financial punishment of thousands of dollars, which many small businesses cannot afford.
The resolution attempts to save itself from scrutiny by creating an exemption for violations of State and federal law. By violating the Fourth Amendment, it is implicitly voiding the entire law from being applicable. In practice, this would mean shifting the burden of proof to business owners as to whether or not this is a violation of their Fourth Amendment rights, creating an incentive to just pay off the fines or comply instead of taking on the costly fight to defend their rights in court.
This sort of fear-based compliance is a gross coercion by the government and is exactly why we have the Fourth Amendment in the first place.
There is lengthy precedent of similar laws and actions being challenged for violating the Fourth Amendment. Critically, in the case of Glenwood TV v. Ratner (1984), the New York Court of Appeals ruled that when the government seeks to obtain the records of a business, there must be an avenue for judicial review to allow the business to contest the government’s request. More recently, the Supreme Court affirmed this standard for judicial review in City of Los Angeles v. Patel (2015), which held that businesses must be able to challenge the request of law enforcement before being punished for failing to do so. The 24-hour timeframe given to businesses to comply leaves no time for them to challenge the request before a judge, and clearly violates the standards established by the highest courts in both New York and the federal judiciary.
If the bill were to be amended to provide a longer timeframe for compliance or to require a subpoena or warrant, the process for obtaining security footage would functionally be the same. There are already robust methods to obtain footage through the subpoena or warrant process that carry penalties for failure to comply. In effect, this bill only carries an additional effect if it can serve as a scare tactic for compliance to bypass a constitutional requirement for a warrant by weaponizing voluntary cooperation through coercion. This is exactly why the resolution must be rejected in any form it takes.
Supporting our law enforcement in their efforts to keep our communities safe is essential, but those efforts must respect individual rights, especially those explicitly protected in our federal Constitution. Legislators and other elected officials swear an oath to uphold our federal Constitution, and that means standing against resolutions like this that threaten constitutionally protected liberties.
I applaud the efforts of elected officials like Presiding Officer Anthony Piccirillo (R-Holtsville) to fight for those constitutional values and consistently defend them, even when it’s difficult. Defending our freedom is a never-ending responsibility of every American, and I’m heartened to see elected officials who clearly understand that duty.
In short, just get a warrant.
Anthony Cacciato serves as New York State Chair for Young Americans for Liberty, an organization dedicated to defending individual liberties and economic freedom. He is a proud Huntington resident and Carnegie Mellon University alumni.
