In a decision released on May 9, 2024, in the matter of Terry Rainwaters, et al. v. Tennessee Wildlife Resources Agency, et al., No: W2022-00514-COA-R3-CV, the Tennessee Court of Appeals has held that the Tennessee statute (enacted by the Tennessee Legislature) is unconstitutional as applied. That decision affirmed holding of the trial court which had also concluded that the practice of the TWRA and the statute on which it relied were unconstitutional.
The record is clear that TWRA knowingly and intentionally enters private property without a search warrant. TWRA asserts that the Tennessee Legislature (you know – the individuals who are sworn to protect the rights of citizens) enacted a statute that allows TWRA to make warrantless searches and to intentionally trespass on private property. The following is from the Court of Appeals’ decision:
Tennessee Wildlife Resource Agency (TWRA) officers patrol private lands across the State of Tennessee without either warrants or consent, relying on statutory authority found in subsections (1) and (7) of Tennessee Code Annotated section 70-1-305. The TWRA does not create records of all of its agents’ entries onto private property and does not provide notice to property owners. Officers enter private property, sometimes conceal themselves thereupon, and look for violations of wildlife laws. In determining which properties to enter to investigate suspected violations of hunting laws, TWRA officers sometimes rely on having previously seen hunters on the property, on word of mouth, or on listening for shots. TWRA officers also enter upon and cross property not under investigation to reach land they intend to investigate. The TWRA indicates its officers investigate property for suspected hunting violations when they have reason to believe that hunting activity is occurring or has occurred. The TWRA does not impose constraints on how often a parcel is entered, what time of day an entry may be made, or how long an officer may remain on private property, and the TWRA does not have written policies for officers to follow when deciding whether to enter private property. The TWRA asserts that its officers have “the statutory authority to go upon any property, outside of buildings, posted or otherwise, in the performance of . . . their duties to enforce wildlife laws.”
The TWRA has made multiple entries upon the properties of Messrs. Terry Rainwaters and Hunter Hollingsworth to investigate suspected violations of wildlife laws. The TWRA does not know how many times its agents have entered upon their properties, nor do Messrs. Rainwaters and Hollingsworth know how many times their properties were entered upon by TWRA agents.
Id, p. 2.
In resolving the case, the Court of Appeals concluded that there is a significant difference between the Fourth Amendment’s protections of “effects” the Tennessee constitution goes further and also protections “possessions”. The Court of Appeals noted:
Both the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Tennessee Constitution protect persons, houses, and papers. U.S. Const. Amend IV; Tenn. Const. art I, § 17. There is, however, a significant textual variance in terms of the scope of protection between these two constitutional provisions. Whereas the Fourth Amendment protects effects, the framers of all three versions Tennessee Constitution, including the current version, rejected protecting effects in favor of protecting possessions.
Though both terms, “effects” and “possessions,” share a property focus, the term “possessions” generates a more expansive shield of constitutional protection than safeguarding “effects.” While James Madison initially proposed a formulation that would have included “their other property,” “effects” is what was ultimately included in what would become the Fourth Amendment to the United States Constitution. The United States Supreme Court has noted that “[t]he Framers would have understood the term ‘effects’ to be limited to personal, rather than real, property.”
In rejecting “effects” in favor of “possessions,” the Tennessee Supreme Court observed that “the word ‘possessions’ was added for a purpose.” Welch v. State, 289 S.W. 510, 510 (Tenn. 1926); see also Allison v. State, 222 S.W.2d 366, 366 (Tenn. 1949). Drawing upon “the ordinary meaning ascribed to it by lexicographers,” the Tennessee Supreme Court indicated that “possessions” “refers to property, real or personal, actually possessed or occupied.” Welch, 289 S.W. at 510. ***
Id, pp. 17-18
As the Court of Appeals moved forward with its analysis of the TWRA’s implementation of the statutory powers purportedly created by the Tennessee Legislature with a view towards the oppression of Tennessee’s citizens under the “pretext” of crime control, the Court stated:
Considered in the relation to the circumstances of the present case, what the TWRA is arguing is reasonable stands in opposition to the restraint upon unreasonable searches and seizures that emerged from the American colonial era in opposition to arbitrary British search practices. Under what the TWRA purports to be a reasonable search, each agent is empowered with the discretionary authority to determine for himself or herself if there is a reasonable basis to suspect hunting activities are occurring on the property. The TWRA does not notify the property owners of its entries or keep records thereof. How often and for long and whether their entry is concealed or not are matters of discretion for the TWRA agents to decide for themselves. There is no clear system of judicial review that allows consideration of the TWRA’s entries upon private property or their agents’ comportment thereupon. Even in the present case where these entries have been brought to the attention of the court through the Plaintiffs’ suit, the TWRA has not endeavored to support each of their entries with an individualized showing of sufficient basis to justify each specific entry. Instead, the TWRA asserts that their approach is systematically reasonable because its officers only search if they conclude that they have a reasonable belief that hunting is occurring or has occurred. The TWRA searches, which it claims are reasonable, bear a marked resemblance to the arbitrary discretionary entries of customs officials more than two centuries ago in colonial Boston.
The TWRA’s contention is a disturbing assertion of power on behalf of the government that stands contrary to the foundations of the search protections against arbitrary governmental intrusions in the American legal tradition, generally, and in Tennessee, specifically. Simply stated, given the purpose of Article I, Section 7 of preventing arbitrary intrusions upon privacy and personal liberty, what the TWRA claims is reasonable is not.
For the reasons discussed above in this section, we conclude that Tennessee Code Annotated subsections 70-1-305(1) and (7) are unconstitutional as applied.
Id, p. 27
The Court of Appeals decision in this TWRA matter is a clear victory for the citizens of Tennessee. It is a victory of constitutional significance and one that will hopefully send a strong message not only to the TWRA but also to those individuals who have been serving and who continue to serve in the Tennessee Legislature.
Indeed, the amended complaint in Rainwater was filed on September 10, 2020, almost 4 years ago. The original complaint was filed earlier in 2020. The trial court’s opinion that found that the Legislature’s statute and its statutory scheme was unconstitutional was released on March 22, 2022.
Why are these dates important?
These dates are important because we have had 132 elected legislators in the state serving now for 4 years who were on notice that the Legislature’s statutory scheme and purported granted of warrantless search authority to TWRA in the name of “crime prevention” was being and later was found to be unconstitutional. The entire time the Legislature was under the absolutely control and dominion of a Republican super majority – the majority that claims to honor the constitutions.
Did those legislators pass a law to stop this abuse? Well, they certainly had the time to do so but they chose not to do so. Once again, it is evidence that under the leadership of the current Republican leaders in the House and the Senate (and let’s not forget Bill Lee), the Legislature is proven to be willing to tolerate and even impose constitutional violations on citizens in the name of “crime control”.
One must ask and this election season is the time to ask it of those seeking elected office in August and November 2024 (particularly those candidates who are incumbents) the simple question –
Why should the citizens of Tennessee believe that you will honor the oath office to uphold the constitutions and protect our rights if we vote for you?
And, if they are an incumbent, ask further why they think they deserve your vote if there is no evidence they they personally sponsored legislation to repeal all laws in Tennessee that infringe any constitutionally protected rights.
If you ask those two questions, you will likely conclude that there are few incumbents who can defend their oath. Certainly, there are some but the burden is on them to prove that they have honored that oath – not on the voter to prove that they have not.
John Harris | Executive Director Tennessee Firearms Association
Joining and supporting TFA is an investment in the fight to restore our constitutional rights and to fight against politicians who are willing to sell their votes and your rights to whichever business interest gives them the most money!
