Government abuse

Ohio Prosecuted a Taxidermist for Asking an Inspector to Come Back Later

Regulators insist Fourth Amendment protections don’t apply to administrative searches.

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When law enforcement officers tell you they're certain that everybody is a lawbreaker, they inadvertently summarize a good reason why we place restrictions on searches for evidence of legal infractions. If the authorities are convinced that they'll find wrongdoing, they'll make sure they find something that runs afoul of one the spider web of rules in which we're entangled. But, like a lot of agencies with regulatory powers, the Ohio Department of Natural Resources (ODNR) claims the Fourth Amendment doesn't apply to its officers. That has taxidermist and deer processor Jeremy Bennett fighting back in court against government goons who insist that they should have access to his property any time they please, and who press criminal charges if even mildly inconvenienced.

"About 10 years ago, we got a new officer for our area," Jeremy Bennett explains in a video about his plight. "And things got progressively more tense, things got more intrusive. The requirements for us had not changed, but the way that they were going about the inspections had definitely changed. And when we questioned that, we were given the statement that 'everybody does something illegal, we just have to find out what you did.'"

The sniffy attitude applies not just to the assumption that everybody is in violation of the law, but also in the insistence that officers have the right to access business establishments at will to look for evidence of violations. When ODNR officer Christopher Dodge came by to inspect Bennett's venison-processing business and asked to see the rest of his premises, Bennett explained that he closed the taxidermy side of his business during hunting season so he could focus on deer. 

"Jeremy asked him to return in a few weeks when he had resumed working on taxidermy and the officer left without objecting," according to the Institute for Justice, which represents Bennett. "But a few months later, Jeremy was criminally prosecuted and threatened with jail time for 'refusing' the officer warrantless entry into his taxidermy shop."

What makes the matter even stranger is that neither deer processing nor taxidermy are regulated in Ohio beyond a requirement for records of when animals are received and from whom. Inspections are just to ensure the paperwork is in order. But ODNR officers do have the legal authority to check those records.

"Any person authorized to enforce this part may enter such establishment or plants at all reasonable hours and inspect the records and premises where operations are being carried on," says Ohio law

The problem is that ODNR insists that "reasonable" means any time its officers please, without regard for the protections afforded by the Fourth Amendment to the U.S. Constitution or nearly identical language in Article I of the Ohio Constitution.

"In practice, ODNR wildlife officers unilaterally decide what counts as a 'reasonable hour,'" Bennett objects in a complaint filed November 16 in the United States District Court for the Southern District of Ohio. "Beyond that self-defined limitation, ODNR does not limit the timing, frequency, duration, or scope of its officers' inspections. Worse still, a shop owner who stands on his right to refuse a warrantless inspection—even if he just wants the officer to come back at a more convenient time—can be criminally prosecuted and thrown in jail."

Bennett asks the court to declare warrantless inspections unconstitutional and to "enjoin Defendants from conducting these and any similar warrantless inspections in the future." In response to questions, an ODNR representative says, "The Department is reviewing the allegations in the Complaint and will respond accordingly. Because this matter is in litigation, the Department has no further comment at this time."

The complaint is worth reading just for the documentation of Officer Dodge's conduct, which is the story of a petty functionary on a power trip. Unfortunately, Dodge isn't the only bureaucrat to let power go to his head in ways that run afoul of search and seizure protections, often with the blessing of the courts. While the law is gray, judges have generally ruled that businesses don't enjoy the same protections as homes, and that the more bound a commercial activity is by red tape, the less protected it is by the Fourth Amendment.

"An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual's home," Justice Harry Blackmun wrote for the Supreme Court majority in New York v. Burger (1987). "This expectation is particularly attenuated in commercial property employed in 'closely regulated' industries."

But, aside from the problem of out-of-the-ether exceptions to Fourth Amendment protections, what constitutes "closely regulated" is in the eye of the beholder. As Justice William Brennan pointed out in the dissent in that case, "the Court finds pervasive regulation in the barest of administrative schemes." He went on to add that the decision "renders virtually meaningless the general rule that a warrant is required for administrative searches of commercial property."

So, are taxidermy and deer processing "closely regulated" industries? In Los Angeles v. Patel (2015), the Supreme Court held that hotels are not closely regulated and that they enjoy the protections of the Fourth Amendment. In fact, as Justice Sonia Sotomayor pointed out, "Over the past 45 years, the Court has identified only four industries that 'have such a history of government oversight that no reasonable expectation of privacy … could exist for a proprietor over the stock of such an enterprise.'" Those industries are liquor sales, firearms dealing, mining, and running an automobile junkyard.

That's quite a grab bag of random commercial activities, and it's difficult to predict whether the courts will see a taxidermist and deer processor as more akin to a hotel or a junkyard. Bennett's perfectly reasonable characterization of his business as "harmless and largely unregulated" seems like a winning argument. But we're talking about courts that manufactured administrative exceptions to the Fourth Amendment out of whole cloth. It's anybody's guess how this shakes out.

"If a recordkeeping requirement is all it takes to justify warrantless inspections of Jeremy's business, then few if any businesses would be protected by the Fourth Amendment," comments Institute for Justice attorney Joe Gay.

So, closely watch Jeremy Bennett's lawsuit against the Ohio Department of Natural Resources. This case isn't just about one small businessman's battle with obnoxious bureaucrats. It's about the ability of Americans to protect their property from warrantless searches by government officials who exempt themselves from constitutional limits just by making rules that say they can do whatever they want.

NEXT: Crisis at Rikers Island

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  1. So does the Ohio statute not say "where operations are being carried on" or what? Because it sounds like taxidermy operations were not being carried on.

    1. To paraphrase MASH: The business will carry on, carry over, it’ll even hari-kari if you show it how, but but it will not carry…something

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  2. > And when we questioned that, we were given the statement that 'everybody does something illegal, we just have to find out what you did.'"

    It would be tragic if that officer had a hunting accident involving a woodchipper.

  3. It was the Joe Biden stuffing project that really put him on their radar.

  4. Oh deer, oh deer!!!
    I do SOOO fear,
    That Power Pigs
    Are very, very near!
    My fears shouldn't be discounted,
    Our innocent heads will soon be mounted!
    Not only a 10-point buck,
    You, too, would best give a fuck!

  5. A great reason to leave the door locked and ignore anyone carrying a deer carcase

    KNOCK KNOCK KNOCK

    "anyone in there!?"

    "Ain't no one here but us chickens boss!"

  6. Oopsy..meant anyone NOT carrying a deer carcase.

  7. 'everybody does something illegal, we just have to find out what you did.'

    It makes you wonder if ODNR officer Chris Dodgy realizes that he's included in the whole "everybody" bit. Maybe he needs a surprise rectal probe into his daily business. When you think of it, it's a natural extension of occupational licensing. Has Chris kept his license up to date? Has he complied to all the regulations? Naturally we should have far more regulations on enforcers than we should on the victims of their enforcement.

    1. This gummit enforcer sounds like a classic example of the sort that would engage in quietly accepting a little' tip" from his putative victims. Wouldn't it be great fun to discover a small number of folks who had actually engaged in such "transactions" wiht this particular agent.....

  8. This fellow is hunting ducks when the game warden shows up.

    The warden sticks his thumb in the ass of one of the ducks and says, "This here ducks from Arkansas. You got an Arkansas hunting license boy?" The fellow says, "Sure do." & shows it to him.

    This ticks him off a bit so he grabs up another duck & jams his thumb in its ass and says, "This here ducks from Mississippi boy. You got one of them there Mississippi hunting licenses?" The fellow says, "Sure do." & shows him.

    This ticks him off even more so he does the same thing and asks for a Louisiana hunting license which the guy shows him.

    Now he's really mad and says, "I ain't seen you around here before boy. Where you from anyway?"

    The guy bends over and drops his pants & says, "You tell me!"

    1. He invites the warden to enter his anus? Ummmm Ok.

  9. The King's game will not be poached.

    The excuse doesn't make sense. He closes the taxidermy side (puts away those tools?) and concentrates on processing deer (same place different tools).

    Customer says, "i want a 60/40 mix of backfat for the loose meat and roasts, chops, and steaks otherwise."

    Proprietor says, "He'd make a handsome full head and neck mount with cape if we take care to preserve it now. Would you like me to prepare that also while I process the rest of your order."

    He may not be actively taxidermying, but the selling part of the shop isn't closed.

    The King's game will not be poached.

  10. Is it unreasonable for an inspector whose only purpose is to check routine paperwork to call and make an appointment like any other normal business? These inspectors often time are akin to HOA officials - petty people who insist on deference they neither earn or deserve.

  11. Warrants? Warrants? We don't need no stinkin' warrants!

  12. I see my comment vanished.

    Briefly... The agents came during active business hours if you read the better Forbes article (with markedly similar wording), which is entirely a reasonable hour.

    In a second, entirely reasonable interest for wildlife officers, they wanted to see the full building for inspection. Processing and taxidermy are VERY involved in their field. Dude refused and wanted to get back to work processing a deer.

    TooSilly forgot a lot of details or didn't care.

    1. I agree: something isn't adding up in the article.

      It doesn't make sense to inspect log books if you can't verify that the log book accurately records what is being processed. That requires surprise inspections of both the log book and the workshop.

      (Whether taxidermists ought to be regulated in the first place is a different question.)

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