A Virginia homeowner is suing state game wardens, alleging they trespassed on his property and stole his camera without a warrant, adding to growing pushback from landowners who say government agents shouldn’t be able to surveil private property.
“It’s almost like we’ve got a situation with where they think their power’s limitless,” Josh Highlander said. “And I just don’t feel like that’s right.”
Josh Highlander is suing the Virginia Department of Wildlife Resources, alleging game wardens trespassed onto his property without a warrant and stole his trail camera. (Courtesy Institute for Justice)
Highlander’s property spanning nearly 30 acres in New Kent County, Virginia, is ringed with no trespassing signs. On April 8, the first day of turkey hunting season, his wife and 6-year-old son were playing basketball when the ball rolled toward the edge of the woods. When they went to retrieve it, they saw someone dressed in full camouflage walking among the trees. His wife rushed their son inside to get Highlander.
“My wife has got, like, this panic in her eyes,” he recalled. But when he went outside to search the property, thinking it may have been a hunter, he couldn’t find anyone. He later realized one of his trail cameras located about 150 yards from his house was missing.
When Highlander reported it stolen, the sheriff’s department told him the Virginia Department of Wildlife Resources (DWR) had taken the camera and would reach out to Highlander, said attorney Joseph Gay with the Institute for Justice, a public interest law firm.
More than two months later, Highlander said he has not received any information from DWR.
A DWR spokesperson declined to answer any questions when contacted by Fox News, citing “pending litigation.”
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Highlander thinks DWR may be searching his cameras for evidence of hunting violations. Earlier on April 8, Highlander’s brother was cited for “hunting over bait” in a different county. Agents claimed to have found seeds in the field where he was turkey hunting and determined they were bait, but Highlander’s brother is contesting the ticket, lawyers said.
“The basic principle here is that if we as ordinary people can’t sneak onto somebody’s land and steal their camera, then government agents shouldn’t be able to do that either,” Gay said. “Not without a warrant.”
Highlander’s lawsuit against DWR, filed earlier this month, challenges a nearly 100-year-old Supreme Court ruling that Fourth Amendment protections against warrantless searches and seizures do not apply to open fields, even if they are surrounded by fences or no trespassing signs. A few states have extended Fourth Amendment protections to privately owned land beyond the curtilage of a home, but Virginia is not among them.
“Part of what this case wants to do is to establish the principle that no trespassing signs should apply to government agents too,” Gay said.
Josh Highlander stands in the woods surrounding his home in Virginia. (Courtesy Institute for Justice)
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The Institute for Justice is litigating similar cases in other states. Two Pennsylvania hunting clubs are suing the state after they say a wildlife officer repeatedly entered their properties to spy on and harass club members. A Tennessee man says wildlife agents placed a surveillance camera on his property without his knowledge. And a Connecticut couple say the state’s energy department strapped a camera to a bear in order to surveil their 117-acre forested property.
Highlander’s case is different because rather than secretly placing a camera, agents took his own privately-purchased camera, Gay said.
“We see that as a completely separate violation of the Constitution and one that I think is clearly established as a violation of the Constitution under case law around the country,” he said.
The suit seeks $1 in damages from the three conservation police officers accused of trespassing on his property, reimbursement of Highlander’s “cost and expenses,” an order for DWR to return his camera and destroy any images it recorded, and an injunction permanently barring wildlife officials from searching Highlander’s property without a warrant or his consent moving forward.
Josh Highlander says his 6-year-old son has been fearful of the backyard since seeing a person wearing full camouflage walking in the woods. (Courtesy Institute for Justice)
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“I don’t care about money,” Highlander said. “I care about the principle and it not happening to someone else.”
To hear more from Highlander and Gay, click here.
