On Aug. 1, another Colorado anti-Second Amendment law took effect, with which, among other matters, Colorado altered its regulatory landscape by putting once highly regarded Colorado Parks and Wildlife in charge of firearm training and qualifications, interposing it between Coloradans and their local sheriffs.
CPW already has a black eye from its role in the insertion of foreign wolves into Colorado. More than half of those wolves died after causing irreparable damage, as credential wildlife biologists and local ranchers predicted. Given the totalitarian drift of Democrats who have run the Centennial State for the last 20 years, to what other mischief could CPW be put?
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While the concern of urban dwellers may be on the threat to privacy posed by Flock cameras, those in the wide-open spaces that constitute most of Colorado fear the menace posed by a 102-year-old, wrongly decided, but unanimous, ruling of the Supreme Court. Under a 1924 opinion by Justice Oliver Wendell Holmes, who eschewed detailed facts and extolled short opinions, the Fourth Amendment (“persons, houses, papers and effects”) protects only a man’s castle and the curtilage, or outbuildings. Thus, surrounding “open fields” are not constitutionally protected from law enforcement, in the case Holmes decided, “revenuers” searching for unpaid federal liquor taxes.
In 1984, during another “national emergency,” the war on drugs, the court doubled down on its mistake, holding the doctrine applies to land that is “neither ‘open’ nor a ‘field.’” Today, according to the Institute for Justice, nearly 96% of the nation’s privately-owned land lacks Fourth Amendment protection from federal agents. Although the situation is somewhat better on the state level, nonetheless, only Mississippi, Montana, New York, Oregon, Tennessee, Vermont, Washington, and Pennsylvania assure landowners, who seek to exclude others from their land, constitutional protection from warrantless search by non-federal law enforcement agents. In a recent legal development, Alabama may join the list.
Regina Williams and Dalton Boley live in a quiet residential subdivision of Killen in extreme northwest Alabama, and, by mutual agreement, enjoy 10 acres of wooded land surrounded by fencing and thick brush, with “No Trespassing” signs. Meanwhile, Dale Liles in nearby Muscle Shoals, owns and leases 86 acres for camping and hunting with his grandchildren. Surrounded by wetlands and thick brush, his property may be accessed only through a locked gate on a neighbor’s property or a private path; both are posted with “No Trespassing” signs.
Nonetheless, Alabama‘s Department of Conservation and Natural Resources, whose “game wardens” enforce hunting laws, claim the unfettered right “[t]o enter upon any land or water in the performance of their duty.” Probable cause and search warrants are not required, and “No Trespassing” signs pose no restriction. The landowners sued, but lost at the trial court, which held, despite a material difference in Alabama’s Constitution — use of the word “possessions” — Holmes’s open fields doctrine applied. IJ’s appeal is at a court just below the state’s highest court.
The landowners are supported by a friend of the court brief from the Alabama Forest Owners’ Association, which, noting that “[o]f the over 23 million acres of forest land in Alabama,” 93% is privately owned, argues “Alabama[‘s] Constitution … afford[s] private property owners a reasonable expectation of privacy…, warrantless entry or search is not permitted by game officials…,” and the open fields doctrine “is inconsistent with the Alabama Constitution” and its “Declaration of Rights.”
The Alabama Supreme Court is years away as is any ruling from the U.S. Supreme Court, but there are positive signs. Over time, the court recognized that technological advances require an expanded view of what the founders intended by the Fourth Amendment: in Kyllo v. United States (2001), as to thermal-imaging devices, in United States v. Jones (2012), as to long-term GPS vehicular tracking, and in Carpenter v. United States (2018), as to historical cell-site location information. In fact, weeks ago, the court applied Carpenter to geofence warrants directed at third-party holders of cellphone location data.
Of course, these rulings involved “telephones,” not unlike what Holmes had in his Washington home in 1924; therefore, the court’s evolving views are understandable. Nonetheless, the court must recognize that modern surveillance technologies, including persistent trail cameras, drones, high-resolution sensors, and continuous remote monitoring, were not anticipated by Holmes in 1924 or by Justice Lewis Powell in 1984.
THE TRAGEDY OF THE COMMONS: WHY WE CAN’T HAVE NICE THINGS
Dissenting from Powell, it fell to Justice Thurgood Marshall, joined by Justices William Brennan and John Paul Stevens, to recognize what every first-year law student is taught: “One of the main rights attaching to property is the right to exclude others.” When a landowner takes affirmative steps to exclude others, with “No Trespassing” signs, for example, in Marshall’s view, he has an expectation of privacy society must recognize.
Here’s hoping Marshall’s thoughtful defense of landowners becomes the law of the land.
William Perry Pendley, a Marine, Wyoming attorney, and Colorado-based public-interest lawyer for three decades with victories at the Supreme Court, served in the Reagan administration, and led the Bureau of Land Management for President Donald Trump.
