Interesting case to come before Arkansas Supreme Court involving AGFC enforcement

[hoglaw]

Tomorrow, oral arguments will be heard in a case involving whether a game and fish officer needs reasonable suspicion of criminal activity to inspect hunting/fishing equipment. I don't know much about the case and wouldn't have heard of it except that one of my partners has been appointed special justice to hear and decide the case (along with the other justices), a very neat honor for him. Oral arguments can be watched (or at least listened to) online I think.

Not too long ago there was a case involving a guy driving a party barge on lake hamilton. The parties stipulated that he was drunk, but that he was driving in a normal and non-suspicious manner. He was stopped by a game and fish officer for a life jacket check when the officer noticed that he was intoxicated and ultimately arrested him. He was convicted and appealed. The issue was whether the game and fish officer could just stop anyone to check on life jackets, or whether he needed reasonable suspicion to believe something was up. The Supreme Court ruled that boaters were entitled to the same consittutional protections as motorists, and law enforcement had to have reasonable suspicion to make the stop, and ultimately reversed his conviction.

I believe that this case involves an officer observing someone who had finished their hunt and inspecting their gear, ultimately finding some sort of violation. I don't know if it was too many ducks, no plug in the gun, lead shot, or what. But they got cited and have appealed, arguing that simply being in possession of hunting equipment and appearing as if they had hunted does not allow an officer to detain them and inspect their gear.

It's an interesting issue because it has the potential to make game violations far more difficult to detect and ultimately prosecute. Like I said, I'm not anywhere close to 100% on the facts of this case, but as I understand it the officer went beyond simply checking their license. Any law enforcement officer can detain someone for any reason long enough to verify their identification (and possibly their fishing/hunting license?). But the question is, what exactly does the officer have to observe before he can check livewells, guns, barbless hooks, etc. My hope is that the court will decide something to the effect that purchasing a license is consent to be searched for the purpose of determining compliance with applicable game regulations. I think there's something about that in the book. But we shall see.

[Bird Watcher]

http://thecabin.net/news/local/2014-12-20/joes-column-court-ruling-license-checks-upsetting#.VYG1LY1RFoJ

The news item had to be significant for the statewide newspaper to put it on the front page, right up there with the biggie about Cuba relations.

An Arkansas appeals court said it was illegal for game wardens to randomly check hunters in the field.

“Game warden” is the old and most common term for enforcement people with the Arkansas Game and Fish Commission. “Wildlife officer” is the official and correct term. In a 2013 incident in Craighead County, three duck hunters were checked by officers. Anyone who hunts or fishes knows the procedure.

A wildlife officer comes up, says, “May I see your license,” and the hunter or fisherman pulls out the license and shows it to the officer. In this case, two of the hunters were found to be in violation of firearms and ammunition rules. They had unplugged shotguns and lead shot shells. Federal and state regulations say a shotgun used for hunting migratory birds like ducks, geese and doves cannot hold more than three shells, including on in the chamber.

Federal and state regulations also say that only non-toxic shot can be used on waterfowl.

The third hunter was OK with his shotgun but told officers he left his license in his truck. “What is your name,” they asked. Then they did a quick radio check and found that he was a convicted felon. Felons cannot use firearms in Arkansas.

In this case, the officers watched the three hunters shooting ducks then followed them back to their camp and asked for licenses. You can imagine the consternation among wildlife officers when this appellate court ruling was issued.

Field checks, the practice is called. It means asking a hunter or fisherman to show a license.

The appellate court said the officers did not have probable cause for doing this. To some folks, it compares to a policemen on traffic duty stopping a motorist and asking for a license. Did the policemen have a reason for making that stop?

Commonly, traffic stops are made for speeding, improper turns, non-functioning taillights and such. Seldom is a drive pulled over for no apparent violation. The scary scenes of police stopping people and saying, “show me your papers” doesn’t occur in our nation, supposedly.This duck hunting case will go to the Arkansas Supreme Court.

If the appellate court ruling is upheld there, then all of us need to be worried about the long-range effect it will have on Arkansas wildlife and conservation, not just on hunting and fishing.

History tell us that the Arkansas legislature passed laws about hunting and fishing in the 1870s, but they had no effect. There was no means of enforcement. It took 40 or so years for this to change with the creation of the Game and Fish Commission in 1915. By then, wildlife was in bad shape in Arkansas and over much of the nation.

The wide picture began changing with the passing of the federal Migratory Bird Act in 1913, which brought an end to market hunting. Many states created wildlife agencies before Arkansas did. All required hunters to have licenses, and the changes started. Restoration of wildlife was a direct result of money generated by license sales.

Wildlife officers will tell you that almost all Arkansas hunters and fishermen follow the rules and don’t hesitate to show licenses when asked. There will always be some who fudge on the rules or break them deliberately and gamble than an officer won’t catch them.

Not check licenses in the field? That is scary too.

[hoglaw]

There you go. Thanks Bird Watcher, a much better version of the facts.

[Quillback]

I always thought that was part of getting a game license - that you could be asked for it by the AGFC. Sounds like they will have to see you commit a violation before asking for your license if this holds up.

When I lived in Massachusetts you were required to wear your license (hunting or fishing) on the outside of your clothing. Don't know if that is still the law there however.

[dtrs5kprs]

I always thought that was part of getting a game license - that you could be asked for it by the AGFC. Sounds like they will have to see you commit a violation before asking for your license if this holds up.

When I lived in Massachusetts you were required to wear your license (hunting or fishing) on the outside of your clothing. Don't know if that is still the law there however.

Interesting. Always assumed you were consenting to be checked for compliance as well, in most states. Never thought of a license check as being asked for papers.

[Feathers and Fins]

California same way have to wear your license where it is visible.

Though page 27 of the fishing regs states clearly you must show the officer on demand your license, to see weapon, game or tackle. I guess the issue here is "Does he have the right just to stop you for no probable cause"

Guessing based on other ruling similar to this I would say NO the officer will now have to witness you doing something illegal. This is NOT good for wildlife imo.

[Chief Grey Bear]

The ruling on this will be extremely interesting.

And potentially extremely devastating.

This could be the undoing of over 100 years of game laws and conservation.

[dtrs5kprs]

The ruling on this will be extremely interesting.

And potentially extremely devastating.

This could be the undoing of over 100 years of game laws and conservation.

Sure looks that way. Perhaps the states will just rewrite things a bit to give officers that power to check.

[Chief Grey Bear]

That is what sickens me. If it is illegal for a Game warden to check you, then why have any regulations?

In my eyes these are frivolous lawsuits!

You got busted poaching and you don't want to pay the consequences!

We have to stop giving power to the criminals!

I hope it is a simple fix as you're stating Dave!

If they put it on the license that the purchase of this license gives power and authority to game wardens to check you, then can I simply not buy license and therefore I cannot be checked? This could get pretty sticky. And all because poachers want protection! I want protection for the resource!

[Feathers and Fins]

Brit, I hate to say it but a Police Officer just cant stop you for no reason and ask for your Drivers License. My thought is the court may well side with the defense on this as it is pretty much the same thing. You drive a car doesn't mean they have the right to stop and check your license. your fishing doesn't mean they have the right to stop and check your license its the same thing. And a court may well side with the defense.

If they do what is the negative (getting checked is not something that goes on a lot anyway) You still have to have a license but it becomes more a secondary violation if you don't have it when they check you for a primary violation just like speeding. States lose no money as you still have to have it to be legal.