In a case with constitutional implications, the Pennsylvania Game Commission was sued Thursday by two Western Pennsylvania hunting clubs and a nonprofit libertarian law firm.
The lawsuit challenges the Game Commission’s searches and surveillance of the Clearfield County clubs’ private property.
Punxsutawney Hunting Club, Pitch Pine Hunting Club and the Institute for Justice are not claiming the agency violated the law. They are claiming the Pennsylvania law is unconstitutional.
The suit names the state agency and Mark Gritzer, the wildlife conservation officer covering that region. The clubs say Gritzer routinely entered their properties, clearly marked as private, to covertly spy on club members.
Despite many incursions onto the properties, Gritzer has issued two citations: one hunter was not in possession of his hunting license, and a club member was cited for having a loaded gun in a vehicle. The petition claims additional club members were approached and some were given warnings for minor infractions, contacts the clubs consider to be harassment.
Jon Mikesell, a member of Pitch Pine Hunting Club, said he and friends were sitting on a front porch when Gritzer drove up to the cabin, without permission or a warrant, accusing them of illegally feeding bears.
“There are certain things you think you have as a property owner. You have No Trespassing signs, you expect privacy, and yet this guy’s walking in camo on your property like he owns the place,” Mikesell said in a statement. “Do we have any rights?”
Frank Stockdale, president of the Punxsutawney club, said his members feel unsettled by the game warden’s intrusions.
“People should feel secure on private property,” Stockdale said. “They should feel like they have privacy and seclusion. But the Pennsylvania Game Commission is making us feel the opposite. We feel invaded.”
Game Commission spokesman Travis Lau said the agency does not comment on pending litigation.
The petition, filed in Commonwealth court in Harrisburg, challenges several state laws.
“This is a constitutional challenge to three Pennsylvania statutes that grant Pennsylvania Game Commission officers virtually unchecked power to enter private land to search for evidence of potential state hunting offenses,” states the lawsuit. “The statutes do not require officers to seek an owner’s consent before entering private land. They do not require officers to obtain a warrant. They do not even require officers to have probable cause.”
Pennsylvania’s “warrantless entry statutes” give wildlife officers powers that, in most cases, police and federal authorities lack. The special authority was given to the Game Commission and Fish and Boat Commission by the state Legislature.
Josh Windham, the Institute for Justice attorney who filed the lawsuit, said those statutes violate the Pennsylvania Constitution.
“Article I, Section 8 of the Pennsylvania Constitution protects citizens, their possessions and properties from unreasonable searches without a warrant or probable cause,” he said. “The Fourth Amendment to the federal Constitution, which was written after Pennsylvania’s constitution, ensures the rights of people to have no unreasonable and warrantless government searches without probable cause, and requires the government to describe in particular and in advance the places and people they want to search. These [Pennsylvania] laws take all of that away.”
The Pennsylvania laws also may run afoul of the U.S. Constitution, which was written 11 years after Pennsylvania’s founding document. The Fourth Amendment of the Bill of Rights protects citizens from unreasonable and warrantless government searches without probable cause, and requires the government to describe in advance the places and people it intends to search.
In a Fourth Amendment case in 1924, the U.S. Supreme Court supported laws that gave the government authority to enter properties, other than yards surrounding homes, without a warrant or landowner permission. In a court led by former President William H. Taft, in an opinion written by Justice Oliver Wendell Holmes, the Court held that, "the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects', is not extended to the open fields.”
In 1984, the Supreme Court reaffirmed its previous decision.
In Pennsylvania, courts have upheld some government use of warrantless searches. In 2007, the Pennsylvania Supreme Court held that Article I, Section 8 does not include private land and that the “warrantless entry statutes” are constitutionally sound. The implication was that in order to enforce hunting and fishing laws and regulations, authorities must be allowed to search for violators on private properties without prior notice.
For about 100 years, the “open fields doctrine” has been successfully used in cases that did not involve wildlife authorities, granting police authority to cross property lines without warrants.
But the tide is starting to turn.
High courts in New York, Montana, Oregon and Vermont, and a Washington state appeals court, have stripped wildlife agencies of those special powers, ruling that the open fields doctrine does not apply there because their state constitutions grant greater protections to citizens.
The Institute for Justice is currently litigating a similar case in Tennessee.
“The new thinking is that they can quickly get a warrant when they need to go onto another property,” said the Institute’s Conor Beck. “They’re going to miss some violations, just like you can do all kinds of things in your house that the police never know about. But when they have probable cause and a warrant, they can come in and get you.”
Wes Oliver, a professor of law at Duquesne University, said the Institute may have a high hurdle to clear.
If the case challenged federal law and the Fourth Amendment, he said, the petition would be “pretty clearly defeated.” He cited Oliver v U.S., a Supreme Court case in which a man planted marijuana in a field surrounded by No Trespassing signs. The police ignored the signs and arrested him. The court said there was nothing wrong with the police going into the open field.
“Is there any expectation of privacy in the Fourth Amendment? No,” said Oliver, who is unaffiliated with the Game Commission and Institute of Justice.
The Game Commission case is different, he said, because of the way the Pennsylvania Constitution was written.
As other states have backed away from the open fields doctrine, Oliver said it could be claimed that Pennsylvania protects citizens from this type of warrantless incursion.
“A state can always say our constitution provides for more protection than the U.S. Constitution does. We have more limits on our government than the U.S. has,” he said.
That may not be enough in this case.
“Do authorities have the right to stop people on private property and talk with them? That’s a little closer to the line,” Oliver said. “It falls into the category of heavily regulated activity.”
Suppose someone owned a salvage yard where people dropped off cars and others came and picked parts off them, he suggested. The police would have the right to come in at any time asking to see the records of all the cars to see if any were stolen, because there is no other way to ensure that people aren’t committing a crime. It’s the same for wildlife officers enforcing game laws on private property, he said.
“If you’re engaged in hunting, [authorities] clearly have the right to ask questions,” said Oliver. “If you’re not hunting, the question is harder.”
The Game Commission has 30 days to reply to the suit or file for a motion to dismiss. Windham said he expects it to reach the state Supreme Court sometime in 2022.
John Hayes: jhayes@post-gazette.com.
First Published: December 16, 2021, 5:13 p.m.
Updated: December 16, 2021, 5:17 p.m.