The Government Says Falconers Have to Give up Their Privacy and Free Speech Rights in Order to Own Birds. Now the Falconers Are Suing.
"I'm treated no differently from a common felon on parole."
The short video shows three California game wardens, armed and wearing bulletproof vests, demanding to search the home of Fred Seaman while he stands around, only partly dressed. He's a falconer in California, and he has been for 30 years.
The game wardens don't have a warrant, and they don't believe they need one to enter Seaman's home. Remarkably, this is happening because Seaman is attempting to follow the law. He's a legally licensed falconer in California, and part of California's regulations grants the state's Department of Fish and Wildlife the authority to conduct unannounced inspections of any facility where falcons are being cared for.
The regulations don't require that the wardens have reasonable suspicion that the birds are being mistreated or that any sort of illegal behavior is happening. And if Seaman resists or refuses to let them in, he could lose his falconry license and be forced to surrender the birds.
This is how falconers have been treated under state and federal law, and some of them have finally had enough. With the assistance of the Pacific Legal Foundation, they're suing.
"This community feels like it's been beaten up on for decades," explains Timothy Snowball, the foundation's lead attorney on the case. "They've been wanting to file some sort of challenge."
It was by happenstance that the foundation connected with falconers. One of the plaintiffs is Peter Stavrianoudakis, who is both a devoted falconer and a deputy public defender in Stanislaus County. He had been looking for a complaint to use as a model for a lawsuit he himself planned to file and came across the Pacific Legal Foundation's work. He contacted them and they agreed to take on the case pro bono.
Stavrianoudakis has been in Seaman's shoes. He tells Reason that in the 1980s he had game wardens show up unannounced for an inspection. He says they suspected he might have illegally imported a falcon from Nevada to California. He hadn't. Rather than getting a warrant, they just showed up claiming this inspection authority and handcuffing him in the process.
"In short, they've created a regulation that says the Fourth Amendment doesn't apply to a citizen engaged in the sport of falconry," Stavrianoudakis says. "I'm treated no differently from a common felon on parole." He keeps Ares in his home, which means that his wife, who is not a falconer, essentially has to give up her own privacy rights as well.
That's not the only right falconers give up. This lawsuit is against both the State of California's and the United States government's Fish and Wildlife Departments, because Washington also essentially censors falconers and imposes other unreasonable restrictions. Federal regulation makes it against the law to profit off licensed birds of prey. But the law specifically targets falconers and only birds of prey, not other exotic birds. If you have a pet toucan or ostrich, cash right in. But Stavrianoudakis is banned under federal law from using his aplomado falcon, named Ares, in "movies, commercials, or in other commercial ventures that are not related to falconry." He cannot allow Ares' image to be used in logos or to endorse any product unless it's related to falconry.
He can use Ares as part of education and conservation education, but even there the law demands that he can only be paid to the extent that it covers his expenses. He is not permitted to make any personal profit off of Ares. Stavrianoudakis says he has no interest in doing so, but he calls the expansive ban "ludicrious." He wants his falconry buddies to be able to teach classes on bird conservation and actually get paid for it.
Snowball theorizes that the purpose of the ban is to prevent exploitation of the birds, but the overbroad way it's crafted violated the First Amendment. The Pacific Legal Foundation cheekily wonders on their own site whether posting a picture of Stavrianoudakis with Ares is violating the law.
"The fact that we're asking that question is constitutionally problematic," Snowball says. "The fact that we have to ask that question means it's probably constitutionally too vague. What does it mean that something is 'falconry related'? What are 'educational purposes'? What exactly does this apply to? There are more narrowly tailored ways to bring that about than a blanket prohibition."
Their lawsuit, filed in the U.S. District Court for the Eastern District of California, argues that the unwarranted, unannounced inspections violate the Fourth Amendment and the blanket controls over how falconers may present their birds represent content-based speech restrictions forbidden by the First Amendment. The plaintiffs are requesting permanent injunctions stopping California and the United States from enforcing these rules.
Read the lawsuit for yourself here, and watch the Pacific Legal Foundation's video below. A spokesperson from the California Department of Fish and Wildlife said the agency does not comment on litigation.
