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!