Does The Government Have The Right To Keep And Arm Bears (With Cameras)?
from the never-mind-the-theoreticals dept
No matter what differences of opinion I might have with Volokh Conspiracy contributors, it must be said the site (now hosted at Reason after a brief run at the Washington Post) manages to surface truly interesting cases on a regular basis.
This is one of them. I’ll let Ilya Somin of the Volokh Conspiracy lead things off because he’s the one who first unearthed this Fourth Amendment lawsuit that cannot possibly have any directly applicable precedent:
A case recently filed in a federal district court in Connecticut alleges that a state government agency violated the Fourth Amendment by attaching a camera to a bear they knew frequented the plaintiff property owners’ land.
Go ahead and re-read that a couple of times. Once you’re done, feel free to move on to the mugshot of the alleged curtilage violator:
Here’s the complaint [PDF], which notes this particular bear was a frequent trespasser on the plaintiffs’ property.
During all times mentioned in this complaint, the defendant knew that bears, including a bear the defendant had tagged as Number 119, frequented the said property [belonging to the plaintiffs].
On an unknown date prior to May 20, 2023, but subsequent to January 1, 2023, the defendant affixed a collar to Bear Number 119 which contained a camera. The defendant thereupon released the camera-carrying bear in the vicinity of plaintiffs’ property.
At approximately 9:30 a.m. on May 20, 2023, Bear Number 119 approached to within 200 yards of the plaintiffs’ residence, which is located near the center of their property. It was wearing the aforesaid camera at the time and, upon information and belief, that camera was activated and taking and transmitting pictures or video of the interior of the plaintiffs’ property to the defendant.
The bear-mounted cam was allegedly supplied (and mounted by a particularly brave employee of) the Connecticut Department of Energy and Environmental Protection (DEEP). According to the complaint, the plaintiffs have been accused of “illegally” feeding bears on their property. So, this cambear appears to be part of DEEP’s efforts to prove the allegations against the couple (Mark and Carol Brault).
This surveillance attempt failed when the couple noticed the bear and its digital appendage. As far as the Braults know (at least at this point prior to discovery), no warrant was obtained before DEEP converted an apparent regular visitor to the Braults’ property into a confidential non-human source.
The Braults say this is a Fourth Amendment violation, with the bear acting as a government agent, albeit one incapable of being directly controlled. Orin Kerr, also writing for the Volokh Conspiracy, isn’t quite so sure this is an illegal search.
First, Kerr says the definition of the term “curtilage” doesn’t generally cover areas 200 yards from the actual residence. That may be so, but DEEP had no idea how close to the home the bear would wander, much less have any way of preventing it from encroaching on the curtilage. So, that seems to be a point in the Gaults’ favor.
This point seems just as questionable:
There’s reason to doubt the bears are covered by the Fourth Amendment. Does putting a camera around a bear’s neck make the bear a state actor, like a person? This isn’t necessarily a new question. There’s lots of lower-court caselaw on drug-detection dogs that are brought to a car and then jump into the car and sniff for drugs, alerting to drugs inside. Most (but not all) of that caselaw holds that, if the dog jumped into the car unprompted by a human officer, then it’s not action attributable to the government. If that caselaw applies here, then it seems dubious that the bears are covered by the Fourth Amendment at all.
It may not be a “government actor” in the sense it was never paid nor directly controlled by the government. But the camera says something different. The camera is the government’s and it’s the state actor. That it was carried by a bear, rather than a human, seems like the more pertinent question to be addressed.
If all bears in the area wore cameras for non-surveillance reasons (for unknown wildlife preservation reasons or whatever), and some of them happened to wander onto this property and caught someone doing something illegal, I can see this being a legitimate “not a state actor” argument. But, if the allegations are true, DEEP placed this camera on this specific bear because it knew the bear, more likely than not, would wander onto the Gaults’ land and perhaps capture footage of something incriminating. That sure makes it seem like it’s a state actor, even if it’s definitely non-traditional.
On the other hand, you can’t make a bear testify. So, it’s the government’s word against the Gaults’ without the benefit of cross-examining the bear to see if it had any vested government interest in approaching their home.
But it seems pretty clear this was state action. Whether or not it was actually a Fourth Amendment violation is up to the court to decide. And I have to believe this court will be thrilled to dive into the intricacies of wildlife-mounted surveillance efforts, because how often do judges get to deal with something that’s actually novel in the best sense of the word? And we should all look forward to the eventual opinion, which will hopefully contain plenty of bear puns and perhaps some Yogi Bear-centric hypotheticals. Stay tuned!
Filed Under: 4th amendment, bears, cameras, connecticut, ct deep, state actor
Comments on “Does The Government Have The Right To Keep And Arm Bears (With Cameras)?”
Not a problem here...
The government can’t use the video or photo evidence as the bear holds the copyright…
Re:
You just want to be slapped, don’t you? Neither the bear nor the government can hold copyright on the pictures! The bear, because… it’s a bear. The government, because this is obviously a work-for-hire situation, and the bear can’t transfer it’s copyright interest to the government because it’s a bear!
And yes, that is my tongue in my cheek. Why do you ask?
Re:
I read about a case where a camera fell into a great ape zoo enclosure and one took a picture which later sold for money. The copyright was determined by the court to be unable to be held by an animal. I can’t remember who ended up with it, but it might have gone into the public domain or that might have just been what I thought should happen, I can’t remember now.
If the government flew a drone over their property, I am pretty sure that would be a fourth amendment violation. If the drones engines behaved erratically, I’m pretty sure that would still be a violation. IF the government really did place the camera in that “location” when intention to perform a search, I think that would be a violation. Regardless of if it was carried by a bear, cat, mouse, or a duped human child (or a aerial drone).
Will the govt try a similar defence as the beggar arguing with Clouseau?
“I am a musician and the monkey is a businessman. He doesn’t tell me what to play, and I don’t tell him what to do with his money.”
Think of the bears
If the government sent the bear onto a property and it then ate illegal bear feed, isn’t the government contributing to the delinquency of a bear?
Why isn’t PETA up in arms about the safety hazard posed by the actions taken by the CT state government?
Its the simple
Bear necessities.
…like illegal beat-feeding food piles?
Would the bear be as likely approach that specific property, if it didn’t know there were treats waiting for it?
Life imitates The Simpsons
This is yet another example of an episode of “The Simpsons” coming true to life, like predicting the Trump presidency (in 2000) and Dr. Dre having a university building bearing his name (in 1995).
This time, it comes from “Much Apu About Nothing” in 1996 albeit with a key detail wrong. The Bear Patrol was formed to stop bears, not to deputize them.
Re:
“The right to keep and arm bears shall not be infringed” is a pretty old joke, and may even predate the Simpsons episode.
Mal Bear Carry’s Malware
or
Govt Seeing What Ursine is Seeing
or
Bears Carrying Cameras Unbearable!
Mobile Telephone Pole?
IIRC there was a case a while ago where the government mounting a camera trained on the front door of a suspect’s house (to monitor everyone who came and went) was deemed illegal.
Just because the camera moves, it seems it’s still invading privacy. In a wooded acreage, one presumes the occupants away from the periphery of the property have a resonable expectation of privacty. The government introducing a camera into there is obviously a violation no matter how it gets there. Would floating a balloon or putting it in a buoy and floating it down a creek be considered OK too? Rolling it down a hill into their property?
As a Reddit refugee, I can't help it.
r/NotTheOnion
I can’t help but thing the whole collar-camera array can’t be comfortable for the bear. Also, I suspect a lack of consent.
Re:
Unfortunately due to the strike, I can’t check r/NotTheOnion to be sure.
Beyonce Defense
DEEP: Your honor, we liked the bear so had to put a Ring on it.
I don’t think this is a 4th amendment violation; if you suspect bears are being fed illegally but don’t know for sure, tagging/tracking/putting a camera on the bear can prove one way or the other.
The government has a vested interest in making sure bears generally stay away from humans, so tracking a bear you may suspect is being illegally fed by someone seems reasonable; and given that the government couldn’t really tell the bear to go anywhere specific, I don’t see how they meet the bear being a state actor point. The bear gonna do what the bear gonna do; the government just gonna watch the bear when the bear is done.
Re:
That constitutes a search, which requires convincing a judge to sign a warrant.
Re:
Tracking is one thing – if they had put a GPS tracker on the bear and it wandered into their property multiple times over the course of a month while not visiting other places as often, that would (probably) be fine. IANAL, but I don’t think bears have Fourth Amendment rights. But that’s not what they did, and a camera is something else entirely. Anon above mentioned a case where the government wasn’t allowed to put a camera on a state pole aimed at someone’s house for weeks without a warrant, why should they be able to do the same when the “pole” wanders around randomly? Sounds to me like more of a Constitutional violation, not less.
Was it a search? Then you need a warrant
This really should be an open and shut case. The government engaged in a search they didn’t have a warrant for, how they did so is rather irrelevant. If they wouldn’t have been able to walk onto the property to look for what they were trying to see then attaching a camera to an animal to do the looking for them should be treated no different.
As an added concern if attaching a camera to an animal go onto property you aren’t allowed to isn’t a problem legally or constitutionally that opens up a huge can of worms because while this time it was a wild bear I don’t see anything that would prevent them from say, slipping a less obvious camera on someone’s dog or ‘wild’ cats and letting it root through someone’s house.
Re: remote control
We arent so far away from being able to attach electronics to animals and make them go where ever we want them to. They’ve literally done it with cockroaches already. Like a living drone.
Re: Re:
Project Orcon by B F Skinner during WWII also comes to mind, which used pigeons to steer bombs onto targets.
Animal monitoring
I suppose they should have had an instrument that could track what the bear was eating and its location but not its surroundings. Maybe a mouthcam.
I had a friend who was in the CIA and stationed in Iran in the early 1950s. He said they caught a dog with a camera placed by the Russians. Clearly, both sides during the Cold War had some weird ideas.
priorities
Police dont have time to investigate when your house gets burglarized, but these agents have time to follow a bear around looking for illegal feeding??
Re:
The Connecticut Department of Energy and Environmental Protection isn’t the police department.
Feeding wild animals is a bad idea, it is illegal for a reason. AFAIK, If one is baiting animals and killing them, the penalties are worse.
If these folk go on vacation, the bear will still want its meal. Said bear will find things to eat, might be in your kitchen.
I think DEEP should have to dig through the bear’s shit if they want evidence of illegal feeding.
If the camera were carried by a drone we wouldn’t be asking about whether the drone was an “actor” here; it is just that the bear is somewhat sentient that confuses us.