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Tuesday, August 12, 2008

Open Fields is Open Season on Property Rights

Steve Sibson at Sibby Online points out today the dichotomy of RINO Jan Nicolay who opposes protecting innocent human life while supporting government intrusion into private property, specifically the "Open Fields" doctrine which allows Game, Fish & Parks officers to come onto private land without permission.

Nicolay must have missed Thomas Jefferson's statement that "The care of human life and happiness and not their destruction is the first and only legitimate object of good government," as well as the "self evident" truths that all people are

endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness

As important as human life is (its importance cannot be understated), property rights are almost as sacred and important.

As a former law enforcement official, I'm very familiar with the requirements police must abide by before entering, seizing or examining the property of a citizen.

Essentially, police must have a reasonable suspicion that evidence of a crime exists within the property to be searched, or that a crime is being committed on the property.

In plain language, police can't come onto your property unless they believe a crime is actually happening, or they believe there is evidence of a crime on your property. Even then, they need a signed warrant unless they are actively protecting life or property, or believe evidence is about to be destroyed.

Police can't just say, "I saw him carrying a TV into his house, so I had justification to come into the house and ensure it wasn't stolen."

Absent a reason to believe otherwise, the presumption is and should remain innocence.

I see no reason why Game, Fish and Parks officers shouldn't be required to meet the same thresh hold. I understand the need to enforce game laws, but without the real suspicion that laws are being broken, property rights should take precedence.

The founders of our country considered property rights to be sacred. The loss of a persons sovereignty over their own property was such an affront to their sense of right and wrong that it was addressed in the Declaration of Independence:

For quartering large bodies of armed troops among us;


He has plundered our seas, ravaged our coasts, burned our towns, and destroyed the lives of our people.

The right of sovereignty over your own property was also so important that the founders addressed it in three amendments of the U.S. Constitution in the Bill of Rights:

Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It was also partially addressed in the Fifth Amendment:

No person shall...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The need for the enforcement of law must be weighed and balanced against the sacred right of property ownership.

HB 1148 in the 2007 legislative session was a common-sense measure sponsored by Rapid City area legislators Rep. Gordon Howie, Senator Bill Napoli, Senator Dennis Schmidt and others. The bill was to define the circumstances under which GF&P should be able to come on private land...and it didn't even make it out of committee.

If GF&P officers want to come someone's property for miscellaneous reasons, they can always ask the property owner; in many if not most cases, they'll probably get permission. But absent compelling reasons such as those in HB 1148, they should have no right to demand entry to the property. Without justification, it becomes a violation of the owner's rights.

What has been going on in South Dakota under the "Open Fields" doctrine is an egregious misuse of government power. It's pathetic that someone came up with this doctrine, and even more pathetic that our legislature hasn't done anything about it.


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