Law professor John F. Banzhaf III: Dorm seizures are grounds for class-action lawsuit

It’s too bad The Hatchet didn’t ask me whether it was legal for the University to surreptitiously take so-called “prohibited (potentially dangerous) items” – for example, pocketknives – from dorm residents’ rooms, and to dispose of them without any opportunity for the owner to contest the seizure or the disposition.

I would have told the newspaper that the perpetrators might well be legally liable in a class-action lawsuit – perhaps orchestrated by one of the organizations designed to protect students’ rights – for the tort of trespass to chattels (unlawful taking or conversion) under several different legal theories. Such a suit could be brought to recover both ordinary as well as much larger punitive damages. It could also result in a court order requiring the University to adopt procedures to allow students to challenge the takings, at least under certain circumstances.

Since the University and its agents and employees are admittedly taking private property, their logical defense would be prior legal consent by the student who owns the property. Any such consent, however, must be clear and informed. Simply telling students – as The Hatchet reported – that their rooms would be subject to inspection is not the same as telling them that items would be seized and disposed of without any opportunity for students to contest the process. Thus, unless the University could meet its burden in court of showing clear and informed consent from each student whose property was taken, there could be legal liability.

Also, consider these alternative scenarios. Suppose student Y visits student X in X’s dormitory room, and inadvertently leaves an item of his behind; for example, his small pocket knife falls out of his pocket and lodges under some furniture in X’s dorm room. Or suppose that student X, while visiting student Z off campus, borrows student Z’s pocketknife.

If, in either of these cases, the small pocketknife is seized by the University during a search of X’s room, there is no possible argument that student Y or student Z consented to their seizure and disposal. Thus the argument that X had consented to the seizure – even if he in fact had – would not seem to be a valid legal defense in a lawsuit by student Y or student Z (not student X) or the unlawful taking of their property.

Indeed, the University might be hard- pressed to show in general that the items seized did in fact belong to students whose dorm rooms were searched. This could be important since only governments, not private organizations, can authorize the seizure of third-party property – e.g., cars used to make drug transactions – and even in such cases there are some legal limitations and opportunities to contest the disposal of the property.

Still another situation under which there might be legal liability would be if an item were seized and disposed of by mistake. The Hatchet hypothesized the confiscation of “an incandescent lamp rather than a halogen lamp (a prohibited item),” and there are several other novel lamps and bulbs on the market today which could easily be mistaken for halogen. Similarly, some computer storage media designed to be easily carried in a pocket look like small pocketknives. Thus all of a student’s research and his entire written thesis, stored on such a media, could be seized and inadvertently destroyed by someone who mistakenly took it for a pocketknife.

I understand and strongly support the University’s efforts to keep items easily capable of causing fires out of its dormitories, and to deal harshly with students who would risk the safety of others by having them. But I’m unaware of any rash of attacks – within or outside the dormitories – by students wielding small pocketknives.

Even more importantly, the University should be able to conduct its inspections in such a way that clear and informed legal consent to both seizure and disposal is first obtained, and that some provisions are made for contesting the seizures in appropriate circumstances. After all, space heaters and other such devices can be fire hazards in any university building, but I doubt very much if the University is conducting surreptitious inspections of faculty offices and seizing and disposing of such items without any notice. If we find out that they are, I’m virtually certain that the Law School faculty, if not the Faculty Senate, would take appropriate steps.

By the way, in addition to the University and the University officials who authorized these seizures, the company conducting the seizures – HRH Mitigation – could also be sued. If so, it will be interesting to see if HRH’s contract with the University requires the University to defend it from such law suits and/or to pay any damages which might be awarded. If not, the company might find itself up a creek without a paddle. If there is such an agreement, it would be clear evidence that both the University and HRH were aware that the seizures might be illegal.

-The writer is a professor of public interest law at the GW Law School.

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