Sunday, August 14, 2022 | Back issues
Courthouse News Service Courthouse News Service

Federal judge upholds warrantless searches for falconers

Strict rules governing the ancient hobby that also prevent falconers from profiting off their birds remain in place for now, although the judge expressed doubt the government will be able to show they're justified as the case progresses.

FRESNO, Calif. (CN) — Falconers will remain open to surprise, warrantless searches of their homes after a federal judge on Friday ruled a group of trained handlers lacked standing to challenge longstanding federal rules governing the use of raptors.

The nonprofit American Falconry Conservancy claims its licensed falconers for decades have been living in fear of the government suddenly knocking on their doors to inspect the living conditions of their beloved red-tailed hawks and peregrine falcons. Falconers argue the federal rules — which have been adopted by California and other states — clearly violate a hallmark of the Bill of Rights and are fighting for them to be scrapped in federal court.

But in a 42-page ruling, U.S. District Judge Dale Drozd tossed the Fourth Amendment claims, noting the feds haven’t conducted unannounced searches since the rules went into effect in 2008 and that previous searches aren’t enough to establish standing.  

“Once again, because plaintiffs have never been subjected to the unannounced inspections pursuant to the challenged regulations, this court can only speculate as to whether any unannounced inspections will be conducted on them in the future,” the Barack Obama appointee wrote. “Accordingly, the court finds that they have not alleged sufficient standing to bring their Fourth Amendment claims.”

Last year a different district judge made similar findings on the subject of warrantless searches but did not rule on the plaintiffs’ injunction request. On Friday, Drozd dismissed various claims and denied the plaintiffs’ motions for preliminary relief from the rules.

James Manley, plaintiffs’ lead attorney, said he was disappointed in the ruling that will continue to force his clients to live under the threat of warrantless searches. He said the Founding Fathers would have been dismayed by the falconry protocols.

“There’s no way to reach the conclusion that falconers are not protected by the Constitution just as any other pet owner is,” Manley said in a phone interview. “It’s a little disturbing to think the government could impose a mandatory warrantless inspection regime for cat or dog owners; the logic of the regulations here would apply to really any pet owner.”

Falconry or hawking is an ancient practice dating back thousands of years in which handlers use trained raptors and birds of prey to hunt game. The first falconry club in the U.S. was formed in the 1930s, and in 2010 the sport was added to the UNESCO Lists of Intangible Cultural Heritage.

U.S. owners must go through years of training to get a falconry license and most keep their birds in their home or closely nearby. Plaintiffs Peter and Katherine Stavrianoudakis say their aplomado falcon “Ares” in fact stays specifically in their bedroom or a fenced area just 20 feet from their home.

Filed in 2018 in the Eastern District of California, the lawsuit by the group and the Stavrianoudakises also argues the rules violate the First Amendment.

Not only does the government reserve the right to inspect falconers’ property, it also restricts their ability to make money off the birds. For example, the regulations limit how much money falconers can charge for speaking or educational events and how certain species can be used in movies.

Officials say the strict licensing rules and commercial prohibitions are necessary to safeguard the health of the protected birds by preventing them from being exploited by untrained handlers.  

“Allowing commercial use of native falconry raptors would increase take of those raptors in two ways. First, additional raptors would be taken pursuant to valid permits. And second, the availability of commercial opportunities for raptor use would increase unlicensed take by individuals without permits,” the U.S. Department of Fish & Wildlife argued in court papers.

In a declaration, the defendants’ expert witness, a federal biologist, said relaxing the commercial restrictions would increase demand and thereby add stress to wild raptor populations.

The plaintiffs countered by casting the declaration as speculative and noted the expert’s study was conducted in 2006, prior to the existing rules.

Though Judge Drozd ultimately also denied the falconers’ motion for a preliminary injunction on its First Amendment argument, he indicated the matter is far from settled and that the commercial rules could be tossed as the case continues.

“Federal defendants have only speculated as to the actual effect of enjoining or removing the commercial speech regulations on wild native raptor populations. However, it is that same uncertainty that cautions this court to deny injunctive relief,” Drozd said.

Drozd acknowledged the feds’ explanation for the commercial rules was shaky but said at this point in the litigation the potential ecological damage to the birds by lifting them outweighs the free speech concerns.

Manley, attorney with the Pacific Legal Foundation, said the plaintiffs may appeal the dismissed Fourth Amendment claims and that he’s hopeful Drozd will ultimately grant relief from the stringent commercial regulations.

“Our clients are prohibited from speaking about certain things like flying their birds, and that’s an obvious First Amendment violation,” Manley concluded. “We’re glad the court has recognized the rules are likely unconstitutional.”  

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.

Loading
Loading...