The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Ilya recently flagged the civil suit recently filed in federal court in which the complaint alleged that Connecticut officials violated a couple's Fourth Amendment rights by releasing camera-carrying bears in the area that came within 200 yards of their home.
Commentators are having lots of fun with the case, and that's great. And to the extent some readers have strong views of putting video cameras on wild bears as a matter of policy, I am glad this case gives them an opportunity to voice those concerns. But if some are wondering if the suit has legal merit, I don't think it does. Among the problems:
- The bears did not enter a space that the Fourth Amendment protects. The Fourth Amendment is not a roving protector of all property interests. It's pretty specific about the kinds of property it protects: "persons, houses, papers, and effects." A bear 200 yards from a home has not searched a person, house, paper, or effect, so it hasn't triggered the Fourth Amendment. It's true that the Supreme Court has adopted a rule that some space immediately outside of a physical home can count as a "house" — the so-called "curtilage" doctrine, which extends the home to area around the home that is used like parts of the home, such as a front porch — but I am not aware of caselaw that says the curtilage can extent 200 yards from a home. The cases just don't extend the house concept that broadly to cover so much land in the area around the home, whether under the so-called "reasonable expectation of privacy" theory or the so-called "property" theory of searches. (Some commentators suggest that the curtilage doctrine wrongly takes away Fourth Amendment rights by artificially limiting the Fourth Amendment to the space around the home, but I think that is textually backwards; it's the text of the Fourth Amendment that limits protection, and the curtilage doctrine that extends the home beyond the four walls of the building.)
- 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.
- The plaintiffs are seeking a remedy that is not available to them, at least based on the complaint. The plaintiffs are seeking an injunction ordering the state officials to turn off all cameras on bears within 10 miles of their property, for all video taken from the cameras to be destroyed, and to stop bears from having cameras (or at least from coming on to their property). But under City of Los Angeles v. Lyons (1983), injunctive relief is not available in federal court against state officials unless the plaintiff can show "a sufficient likelihood that he will again be wronged in a similar way." Here, I take it that would require some showing that the state's tagged bears are going to come up to their home with the video cameras on again (assuming the cameras were on before). If there is specific reason to think that, it is not in the complaint.
There are other arguments the state could make, such as that the bear-tagging program, if it's a search, is part of a reasonable non-law-enforcement program under the "special needs" exception. Certainly plausible, but it would help to have more facts about the program to say more.
Anyway, I realize that discussing current law draws the ire of some readers, who prefer we discuss what the law of camera-carrying wild bears should become, not merely what the rulings of small-minded courts would suggest it now is. But I figured I would at least offer the latter.