New Lawsuit Asks Whether State Agents Can Trespass and Place Cameras on Private Land in Tennessee

New Lawsuit Asks Whether State Agents Can Trespass and Place Cameras on Private Land in Tennessee

Camden, Tenn.—Terry Rainwaters lives, farms and hunts on the 136 acres he owns along the Big Sandy River in rural Tennessee. It’s clear that the farm is private property, with a “no trespassing” sign on the gate. Yet agents of the Tennessee Wildlife Resources Agency (TWRA) ignored that warning, entering his property to set up and retrieve cameras that they used to watch for hunting violations. Now, Terry and another property owner, Hunter Hollingsworth, are teaming up with the Institute for Justice (IJ) to sue the TWRA, asking the court to protect their right—and the rights of all Tennesseans—not to be subject to warrantless searches.

“In America, private land is not open to public officers,” said IJ attorney Joshua Windham. “That’s especially true under the Tennessee Constitution, which requires state officers in every corner of the state, from the city to the country, to get a warrant before searching private property.”

In December 2017, Terry discovered two cameras set up on his farm, one overlooking his field and another pointed toward the back of a house Terry rents out to a long-time tenant. Terry left the cameras in place, and a few days later they were gone. And Terry isn’t the only local landowner to find that they were being watched. His neighbor Hunter similarly discovered cameras and has also encountered a TWRA agent on his land.

“It’s deeply disturbing that I never know whether a state game officer is walking around my land or watching my private activities,” said Terry. “If the state can put cameras on my farm whenever they want, that really destroys the notion that this land is private. And having unannounced visitors walking around our farm during hunting season isn’t just intrusive, it’s dangerous.”

While most Americans would think law enforcement needs a warrant to conduct surveillance, the U.S. Supreme Court held nearly a century ago that the Fourth Amendment does not apply to “open fields.” This misguided doctrine ignores a fundamental point of the Fourth Amendment: to ensure that Americans are secure on their properties. Fortunately, the Tennessee Constitution provides greater protection from unreasonable searches of private property than the Supreme Court says applies under the U.S. Constitution, and the Tennessee Supreme Court has rejected the “open fields” doctrine several times. That’s a good thing, because otherwise most of the private land in Tennessee would receive zero protection from warrantless searches.

“‘No trespassing signs apply to the government too,” said IJ attorney Jaba Tsitsuashvili. “Nobody thinks it’s okay for government agents to set up a tent on your property and watch you day and night. How is installing a camera on your property to do the same thing any different?”

The Institute for Justice is the nation’s leading advocate for property rights. This case is the latest in IJ’s nationwide initiative to secure property owners’ rights against unconstitutional searches. IJ is currently litigating on behalf of property owners and tenants facing unconstitutional home inspections in IllinoisWashington StatePennsylvania, and Indiana. And in New York, IJ is challenging law enforcement’s coercion of individuals’ waivers of their rights to be free from unconstitutional searches.

Reprinted from the Institute for Justice.

Homeowners Seek Rehearing in House-Destruction Case

Homeowners Seek Rehearing in House-Destruction Case

Arlington, Va.—If the government needs to destroy your home to build a freeway or a school, the Constitution entitles you to just compensation. But what if the government needs to destroy your home for some other reason—say, to capture a fugitive who has randomly taken refuge in your house while fleeing the police? Does the government owe you anything?

Shockingly, the U.S. Court of Appeals for the Tenth Circuit held in a ruling this October that as long as the government uses its “police power” to destroy property, it cannot be required to provide compensation for that property under the U.S. Constitution’s Takings Clause. Today, the Institute for Justice, the nation’s premier defender of property rights, announced that it will file a petition for rehearing by the entire Tenth Circuit (known as rehearing en banc).

“The simple rule of the Constitution is that the government cannot arbitrarily single out private citizens to bear the costs of something that should rightly be the burden of society as a whole,” explained IJ Attorney Jeffrey Redfern. “If the government requires a piece of property to be destroyed, then the government should pay for it—and that’s just as true regardless of whether the people doing the destroying are the local school board or the local police.”

The case was brought by Leo, Alfonsina and John Lech, seeking compensation for the destruction of a home Leo and Alfonsina owned (and in which their son John lived with his own family) in Greenwood Village, Colo. In 2015, an armed shoplifter fleeing the police broke into the home (apparently at random) and refused to come out. After taking gunfire from the shoplifter, the police resorted to more strenuous means of attack, including explosives, high-caliber ammunition, and a battering ram mounted on a tank-like vehicle called a BearCat. The fugitive was apprehended, but the home was totaled.

The Lechs’ case, originally brought by Colorado attorney Rachel Maxam, who continues to represent the family alongside IJ, argued that the complete destruction of the house was a “taking” that required compensation under the U.S. Constitution. But a three-judge panel disagreed, ruling that actions by law enforcement officials could never amount to a “taking,” no matter what, and so the appropriate amount of compensation was zero dollars.

“The police are allowed to destroy property if they need to in order to do their jobs safely,” said IJ Senior Attorney Robert McNamara. “But if the government destroys someone’s property in order to benefit the public, it is only fair that the public rather than an innocent property owner pay for that benefit.”

“This whole affair has quite simply totally destroyed our lives,” said Leo Lech. “My son’s family was very literally thrown out into the street with the clothes on their back, offered $5,000, and told to ‘go deal with it.’”

“Property rights are the foundation of our rights,” said IJ President and General Counsel Scott Bullock. “The court’s ruling that government officials can purposefully destroy someone’s home without owing a dime in compensation is not just wrong. It is dangerous, and it is un-American. The Institute for Justice is committed to seeing it overturned, for the Lechs and for the protection of property owners across America.”

Reprinted from the Institute for Justice.

New Report Nations Largest Forfeiture Program Fails To Fight Crime

New Report Nations Largest Forfeiture Program Fails To Fight Crime

A new Institute for Justice study (PDF) finds the nation’s largest forfeiture program does not help police fight crime. Instead, the study indicates police use forfeiture to boost revenue—in other words, to police for profit. The IJ study, “Fighting Crime or Raising Revenue? Testing Opposing Views of Forfeiture,” combines local crime, drug use and economic data from a variety of federal sources with more than a decade’s worth of data from the Department of Justice’s equitable sharing program. Equitable sharing lets state and local law enforcement cooperate with the Drug Enforcement Administration and other DOJ agencies on forfeiture cases and receive up to 80% of the proceeds.

The study—the most extensive and sophisticated of its kind—calls into question whether distributing billions of dollars in forfeiture proceeds improves police effectiveness. The new evidence undercuts claims by prominent forfeiture supporters, such as former Deputy Attorney General Rod Rosenstein, who called forfeiture an “important tool that can be used to combat crime, particularly drug abuse,” and Attorney General William Barr, who, while acknowledging “problems and potential abuses,” called forfeiture “a valuable tool in law enforcement.”

Specifically, the study finds:

Read the rest at ij.org.

Virginia Couple Sues to Protect Their First Amendment Right to Teach

Virginia Couple Sues to Protect Their First Amendment Right to Teach

In Virginia, you can teach anyone anything—except how to earn an honest living. That’s the lesson Jon and Tracy McGlothian learned when they tried to open a school to teach job skills to adults in their Virginia Beach community. Yet the State Council of Higher Education for Virginia (SCHEV) has made it virtually impossible for them to do so legally.

SCHEV says that Jon and Tracy can’t teach skills like project management or sewing without its permission; permission the council has refused to grant for more than two years. That’s why Jon and Tracy have teamed up with the Institute for Justice (IJ) to file a federal lawsuit against SCHEV to vindicate their right to teach for a living.

Jon and Tracy worked for a lifetime to build skills to become, respectively, a certified project management professional (PMP) and experienced sewer. In 2015, their established business, the Mt. Olivet Group, LLC (TMOG), set out to teach people the skills they would need to advance in these fields. Under Virginia law, they could freely teach anyone these skills as a hobby, but cannot teach the general public if students want to use their classes to earn an honest living.

“What SCHEV is doing violates the First Amendment,” said Paul Sherman, a senior attorney with IJ. “Teaching is speech, and the government has no business telling Jon and Tracy they’re not allowed to teach willing adults. Under the First Amendment, people get to decide for themselves which speakers are worth learning from; the government doesn’t get to decide that for them.”

Read the rest at ij.org.

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