By Seth Richardson
Colorado Springs City Councilman Tom Gallagher thinks the police department may be harassing him because of his advocacy for pay cuts for city employees. He objects to the police preventing him from using a detached garage at his rental house for parking because it was alleged to have been used as an illegal meth lab.
Gallagher is probably wrong on both accounts, but not for the reasons that come immediately to mind. In this case, the CSPD has done nothing wrong. The garage was placarded as “unlawful to occupy” in March of 2008, presumably before Gallagher moved in to the house, so he can’t say he didn’t have due notice.
The police were simply obeying Colorado law, amended in 2009, that requires illegal drug labs to be vacated and cleaned up before they can be occupied. The concerns are legitimate, and the risks of cross contamination and physical harm to anyone occupying a contaminated structure are very real.
The real problem is that the law imposes substantial burdens on the owners of properties where illicit drug labs are found without providing adequate due process.
The biggest problem with the law, C.R.S. 25-18.5-101 et. seq., is that it gives the police far too much discretion in declaring a property to be an illegal drug laboratory, which the law defines as “the areas where controlled substances, as defined by section 18-18-102, C.R.S., have been manufactured, processed, cooked, disposed of, used, or stored and all proximate areas that are likely to be contaminated as a result of such manufacturing, processing, cooking, disposal, use, or storing.”
The law also says, “Upon notification from a peace officer that chemicals, equipment, or supplies indicative of an illegal drug laboratory are located on a property…the owner of any contaminated property shall meet the cleanup standards for property established by the board…” It goes much further and can require the owner to evict anyone living in the house immediately and seal it up and not allow anyone not “trained or certified to handle contaminated property pursuant to board rules or federal law.” There is no requirement that the police or the health department actually determine that the structure is contaminated, all they have to do is find precursor chemicals stored there and notify the owner of “probable” contamination.
This law gives the police over-broad authority to determine if an illicit drug lab exists and to invoke a presumption that it’s contaminated, thereby burdening the property owner with the expenses for testing and ejecting the occupants without any notice. The El Paso County health department acknowledges that “most owners forego the expense of sampling and testing and simply accept that a cleanup will be required.”
This does not provide adequate due process to a property owner, and it gives police officers, who are not qualified to assess or determine the degree of contamination that might be present, the authority to eject someone from their home based solely on the existence of chemicals or equipment in the home, whether or not the home is factually contaminated. That would properly be determined by the local health department.
Here’s an example of how police authority might be abused. Pseudoephedrine tablets (otherwise known as Sudafed, an over-the-counter decongestant) are a precursor chemical for manufacturing meth. Suppose for a moment that a renter obtains a thousand tablets of Sudafed and puts them in the bathroom, but never actually cooks any meth, and may not in fact have any intention of cooking meth.
The law is so broadly written that a dishonest police officer can harass the owner of the house by declaring the house a “meth lab” because a “controlled substance” has been “stored” there. With this simple declaration, the owner is then required to do elaborate testing to prove a lack of contamination without any police proof of actual contamination, or at the very least file an expensive civil lawsuit to overturn the officer’s “determination.”
Why might the police do this? Well, they might view the property owner as being “uncooperative” with their efforts to clean up the neighborhood by driving all the alleged meth addicts out by having them evicted. By threatening to declare his rental property to be a meth lab, even if it isn’t actually contaminated, they can achieve their goal more easily.
This is merely an example and is in no way intended to suggest that the CSPD has or will engage in any such malfeasance, but the principles of law at issue require that police not be given the sort of latitude to depart from the Constitution that this law allows. Citizens have a right to demand that their laws to constrain the ability of the police to abuse their authority.
Now, it is perfectly reasonable to say that actual meth lab contamination is very dangerous, and the state has a significant police-power interest in regulation contaminated structure and even in prohibiting entry to such places. However, the burden of proof for a substantial regulatory action like ejecting someone from their home and prohibiting them from using and enjoying their personal property is far too low in this case.
Mere assumptions on the part of police officers are just not good enough. For a property to be an actual public nuisance in the traditional sense, the police or health authorities have to have probable cause to enter the residence for an inspection (let’s use a “hoarder” as an example), then they have to inspect the residence and make a determination based on evidence that the property is actually unfit for human habitation, and then they have to get a court order to demand cleanup or eject the tenant.
They cannot simply go in and say “we believe this property is contaminated, now get out!” They have to provide proof that the property actually is a public health nuisance, not place the burden on the property owner to prove that it is not.
This state law, while filled with good intentions, is on the road to the customary destination of all well-intentioned but ill-considered laws and needs to be challenged to raise the bar and require the state to provide due process for a homeowner, which means a court hearing at which the government has to prove that the property is actually contaminated.
But for now, Gallagher is stuck, and if he wants to complain, he should complain to his landlord, who is the one who is responsible for cleaning up the property, if it’s actually contaminated, that is.