Volunteer State News

Terry Rainwaters and Hunter Hollingsworth thought their homes were private property, and they controlled who came and went on it.

Turns out that’s not entirely accurate.

The rural Tennessee residents have had their land repeatedly crossed by employees of the Tennessee Wildlife Resources Agency. The state employees have even gone as far as to set up cameras — without the knowledge, much less permission — of the property owners.

Terry Rainwaters | Institute of Justice

That led to Rainwaters, a mechanical technician and farmer, and Hollingsworth filing a lawsuit in Benton County Circuit Court. They are represented by the Institute for Justice, a national law firm that takes on cases involving individual and property rights.

“TWRA might want to be a good steward of the state’s wildlife population, but it cannot pursue that goal at the expense of peoples’ constitutional rights,” Institute of Justice lawyer Robert Frommer told Volunteer State News.

“After all, detecting and fighting crime is definitely a legitimate interest, but no one would suggest that means the police should be able to barge into your home whenever they want,” Frommer said. “Government officials must obey the Constitution, no matter what badge they wear.”

The lawsuit lists the Tennessee Wildlife Resources Agency, Ed Carter, who recently retired as TWRA’s executive director, and TWRA officer Kevin Hoofman as defendants. Bobby Wilson has been named the agency’s new executive director, and the plaintiffs are seeking to substitute his name.

“That development need not impact the Court’s decision here, because Defendants’ motion assumes the truth of all facts in Plaintiffs’ complaint,” the IJ said in a court filing. “Defendant Carter would remain a defendant for purposes of Plaintiffs’ retrospective claims for declaratory relief and $1 in nominal damages.”

Frommer said this should not be a major issue.

“Right now Carter is in the case, and that footnote is informing the court that we’ll move to being Wilson into the case once the motion to dismiss is decided,” he said.

“That motion to dismiss the case argues in part that, even though TWRA agents have repeatedly trespassed on Terry and Hunter’s properties, neither Terry nor Hunter can sue because maybe TWRA won’t come back,” he said. “Argument on the motion will be heard on August 17, and we expect to prevail.”

Frommer is working with Joshua Windham and Jaba Tsitsuashvili, both IJ lawyers, on the case. They feel it’s an important case with nationwide implications.

“It is an issue because the Tennessee Constitution protects peoples’ right to be secure on their own land,” Frommer said. “TWRA officials have repeatedly snuck onto Terry and Hunter’s properties and installed surveillance cameras in their trees to capture their comings and goings. No one — Terry and Hunter included — could feel secure on their land when government officials may be hiding behind the bushes. That’s why we asked the courts to declare that TWRA’s warrantless snooping violates Article I, Section 7 of the Tennessee Constitution."

Rainwaters owns about 135 acres of land along the Big Sandy River near Camden and considers it his “sanctuary,” according to a report on the IJ website.

“Although Terry has no record of hunting violations, TWRA officers barged onto his land in December 2017 — without a warrant or probable cause,” it states. “They installed two surveillance cameras in Terry’s trees, even cutting the branches of one tree to get a clear view of Terry’s property. The cameras could capture images of people and cars, of Terry and his son farming and hunting, and even of the back of their tenant’s home.”

Hollingsworth, a railroad technician, owns about 91 acres outside of Camden.

TWRA officers routinely enter private lands to snoop for potential hunting violations, according to the IJ, despite a complete lack of evidence.

“When Hunter discovered a surveillance camera that TWRA installed in one of his trees, he took it home, not knowing where it came from,” an IJ report states. “Its pictures showed officers installing the camera and monitoring him and his friends. And on other occasions, Hunter has seen TWRA officers wandering around his property without permission. When Hunter told one officer that he didn’t have permission to barge onto his land, the officer replied: ‘When you bought your hunting license you invited me.’”

That’s based on the concept of “open fields.”

Open fields a legal doctrine stating that law enforcement officers do not need a warrant to search property. Opponents of the theory say it violates the Fourth Amendment of the U.S. Constitution.

The U.S. Supreme Court has ruled that open fields does not include homes and adjoining land, such as yards. But it allows warrantless searches of virtually any other open area.

Some states have rejected the doctrine. The Institute of Justice is ready to test this practice in Tennessee.

“TWRA thinks it can get away with such creepy surveillance because the U.S. Supreme Court wrongly held that the U.S. Constitution’s protections against unreasonable searches don’t apply to ‘open fields,’” the IJ states. “But the Tennessee Constitution prohibits state officials from barging in whenever they wish. That’s why Terry and Hunter have teamed up with the Institute for Justice (IJ) to sue TWRA in Tennessee state court: to vindicate the right of all Tennesseans to be free from unconstitutional searches.”

Frommer said there is no reason for such behavior. He said the state agency has an important role to play, but not at the expense of violating the rights of citizens and landowners.

“TWRA officials can continue their work of enforcing the state’s hunting laws, but they must obey the Constitution,” Frommer said. “If they believe that a violation of the state’s hunting laws is occurring on private property, they should apply for and obtain a search warrant, just like we would require the police to get a warrant before coming into someone’s home. The Tennessee Constitution’s protections against unreasonable searches and seizures apply to all state officials, TWRA included.”

He said it’s a much larger issue than investigating potential hunting violations.

“Terry’s and Hunter’s case is about much more than just hunting. It’s about the basic right of every Tennessean to be secure on their own land, whether that’s on their farm or in their backyard,” Frommer said. “Terry and Hunter are suing because our constitutional rights rise and fall together, and their victory will benefit every Tennessean. People can support those efforts by engaging with their elected officials, telling those officials to respect their rights under the Tennessee Constitution, and fighting against laws and policies that sacrifice those rights in the name of government efficiency.”

In 2018, Hollingsworth filed a lawsuit in federal court. But it was dismissed on Oct. 21, 2019, the U.S. District Court for the Western District of Tennessee said, citing the open fields doctrine and prior rulings.

The Institute for Justice is based in Arlington, Va., with offices in Florida, Minnesota, Texas, Arizona and Washington state as well as the Clinic on Entrepreneurship located at the University of Chicago Law School. The Institute for Justice, a 501(c)(3) organization, bills itself as the “National Law Firm for Liberty.”