Thursday, June 8, 2023
Josh Highlander’s residence
9619 Old Forge Rd.
Providence Forge, VA 23140
- Josh Highlander
- Joe Gay, Attorney, Institute for Justice
- Josh Windham, Attorney and Elfie Gallun Fellow, Institute for Justice
RICHMOND, Va.—Do “no trespassing” signs apply to the government? Josh Highlander found out that Virginia game wardens think they have the right not only to trespass on the land he calls home, but to also take his game camera while there. The game wardens did not even try to get Josh’s consent or a warrant. Now, the Institute for Justice (IJ) is teaming up with Josh to sue the Virginia Department of Wildlife Resources (DWR) for invading his privacy and taking his property.
READ the complaint.
“The whole point of having private property is so that you can say who comes on and who doesn’t,” said IJ Attorney and Elfie Gallun Fellow Josh Windham. “By sneaking around Josh Highlander’s land and taking his camera without a warrant, Virginia game wardens turned that basic American concept on its head.”
Josh Highlander became aware of DWR’s intrusion onto his property in an alarming way. On April 8, the first day of turkey season in Virginia, Josh’s wife and young son were playing outside when their basketball rolled toward the woods. When Josh’s wife went to retrieve it, she saw a figure in heavy camouflage in their woods. She ushered her son back into the house and alerted Josh, who came outside but couldn’t locate the stranger.
“For weeks my son wouldn’t play outside in his own backyard because he was afraid of who might be in the woods,” said Josh. “My camera was taken two months ago, and I’ve still never received a receipt, a warrant or a ticket. In decades of hunting, I’ve never received a citation. DWR also says they promote safety, but they snuck around my land without telling me. What happened to my family was wrong and I’m fighting for our privacy and to make sure this doesn’t happen to anyone else.”
Later that day, Josh discovered that the game camera had gone missing. Josh’s camera had been on the part of his 30 acres where he grows a “food plot.” Food plots grown to attract game are legal in Virginia—DWR encourages them on its website and, weeks earlier, Josh’s family fertilized his food plot and planted millet seed.
How Josh’s camera went missing soon became clear. Josh learned that his brother, Rob Jr., had been cited for a hunting violation earlier in the day and that his father, Rob Sr., had been approached by wardens but not cited. And Rob Jr. had seen DWR officials parked in a cul-de-sac near Josh’s home on that same day, likely after they searched the property and took the camera.
While most Americans would think law enforcement needs a warrant to conduct surveillance on private land, the U.S. Supreme Court held nearly a century ago that the Fourth Amendment does not apply to “open fields.” But whether law enforcement can take a camera or other property without a warrant while searching an open field is legally questionable.
This misguided open fields doctrine ignores a fundamental point of the Fourth Amendment: to ensure that Americans are secure on their properties. But Article I, Section 10 of the Virginia Constitution expressly prohibits unconstrained searches of “places,” a term that includes private land. But that constitutional guarantee is only as good as the courts willing to enforce it. Josh and IJ have brought this suit to ensure that Virginians receive meaningful constitutional protection in their land and the property on it.
“No trespassing signs also need to apply to the government,” said IJ Attorney Joe Gay. “If ordinary people can’t sneak onto your land and steal your property, then government agents shouldn’t be able to do that either without a warrant.”
This case is part of IJ’s Project on the Fourth Amendment, which seeks to protect the right for Americans to be secure from unreasonable searches and seizures. In Tennessee, a state court ordered the Wildlife Resources Agency to stop warrantless trespasses and placement of cameras after IJ sued on behalf of two property owners. IJ is also representing two hunting clubs in Pennsylvania that have been subject to warrantless searches.