Monday, October 12, 2015

Seattle sued for trashing privacy rights

Originally published in Composting News, July 2015

By Ken McEntee

The city of Seattle is violating residents privacy and due process rights by requiring garbage collectors to snoop through people’s garbage as part of a new ban on throwing food and food waste into the trash, claims a lawsuit filed against the city this month. A civil rights lawsuit, Bonesteel v. City of Seattle, was filed by attorneys with the Sacramento, Calif.-based Pacific Legal Foundation (PLF), on behalf of a number of Seattle residents who say their rights are violated by the new food waste ordinance.

“This program calls for massive and persistent snooping on the people of Seattle,” said Brian Hodges, PLF principal attorney and managing attorney with PLF’s Pacific Northwest Center in Bellevue, Wash. “This is not just objectionable as a matter of policy, it is a flagrant assault on people’s constitutional rights.”

The suit seeks a permanent injunction and a declaration that the snooping law is void and unenforceable because it flouts core privacy and due process guarantees.

Donor-supported PLF is a public-interest watchdog organization that litigates nationwide for limited government, property rights and individual rights.

In the lawsuit filed in King County Superior Court, PLF attorneys represent — without charge — Seattle residents Richard Bonesteel, Scott Shock, Steven Davies, Sally Oljar, Mark Elster, Greg Moon, Keli Carender and Edwin Yasukawa.

At issue is Seattle Ordinance No. 124582, which took effect on January 1, prohibiting residents from throwing food and compostable paper in the trash. The food waste ban requires garbage collectors to monitor the contents of garbage cans through “visual inspection” and to report residents to Seattle Public Utilities when “significant amounts” of a can’s contents (more than 10 percent) are made up of recyclables or food waste.

Currently, an “educational” tag is affixed to offending cans. Starting in January 2016, fines will be imposed. The law applies to single-family homes, apartments, and commercial properties.

“Seattle can’t place its composting goals over the privacy and due process rights of its residents,” said PLF attorney Ethan Blevins.  “This food waste ban uses trash collectors to pry through people’s garbage without a warrant, as Washington courts have long required for garbage inspections by police.”

Hodges added that although it is “laudable to encourage recycling and composting, the city is going about it in a way that trashes the privacy rights of each and every person in Seattle. 

The city may try to put a happy face on the program, with assurances that it’s not nosy and meddlesome, but the internal documents tell another story. Training documents call for ‘zero tolerance’ and show garbage collectors removing bags to inspect a garbage can, peering into translucent bags, and opening torn or untied bags.

Garbage collectors have already begun placing brightly colored tags in plain view on “offending” cans, PLF said. Starting in January 2016, fines will be imposed ($1 per offense for residents; $50 for multi-family property owners and commercial establishments). 

Although PLF said the fines are nominal amounts, two state constitutional rights are violated:

* Right to privacy. Article I, section 7, of the Washington Constitution provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.”  This provision offers more expansive protection than the Fourth Amendment to the U.S. Constitution.  Washington courts “jealously guard” the right to privacy, holding that people have a reasonable expectation that the contents of their garbage cans will remain private, and that the government may not search rubbish bins without a warrant.

“The constitution and courts of Washington recognize that the right to privacy, like the right to property, is a fundamental freedom,” said Hodges.  “Seattle city government is subverting that right by prying into people’s private affairs via their trash cans.”

* Right to due process. Article 1, section 3, of the Washington Constitution says, “No person shall be deprived of life, liberty, or property, without due process of law.”  Yet for most alleged offenders, the food waste ban does not provide any method for challenging claims of violation.  In fact, it operates solely on the word of garbage collectors.  With one exception for repeat commercial offenders, there is no requirement for preserving evidence (such as photographs) and no opportunity for appeal.

“This law makes garbage collectors the judges and juries,” said Hodges.  “You’re at the mercy of their off-the-cuff estimates about the amount, or percentage, of food waste and recyclables in your garbage can.  If their subjective hunch goes against you, you get a fine and/or a brightly colored ‘shame tag’ to embarrass you in front of the public. The people of Seattle should not be treated with less respect than is due to accused criminals. In fact, the state constitution guarantees them a right to be treated fairly and with due process, and our lawsuit seeks to uphold that right.”

Davies, one of the plaintiffs in the suit, said, “There is nothing trivial about government abridging our right to personal privacy in our homes and our daily lives. Seattle’s garbage law promotes government snooping, and that’s not just offensive, it’s a violation of constitutional protections for all Seattle residents.  The city can’t treat people’s basic rights as disposable, and I’m grateful Pacific Legal Foundation is helping us stand up for that principle.”

Elster, another plaintiff, added, “Social engineering of this sort leads to unnecessary and unwelcome government intrusion. Seattle’s garbage recycling program may seem well-meaning, and the inconveniences to the public might seem trivial, but there’s nothing harmless about the city attempting to coerce everyone through a program of official prying.  

We’re suing on behalf of all Seattle residents who value their privacy and other basic freedoms, because the people’s constitutional rights take precedence over the politicians’ policy preferences.”

More information, including the complaint, video, a blog post and a Stop City Snooping webpage, is available at

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