Tresspassing and the threat of deadly force

[DHJenkins]

I have to deal with trespassers on commercial property on a weekly basis.

In fact, I had to call the law yesterday afternoon.

At least in TX, you cannot be charged with trespassing until you've been issued a 'criminal trespass warning' by a police officer. If you come back after that, yes, you'll be carted off to jail - no questions asked, no excuses accepted.

According to the officer I spoke to yesterday, the smartest thing to do is to *not* approach them and call the police (which is what I usually do). This makes sure they're all there when the police arrive, making it easier to get ID's/etc... and allows them to issue the warning the first time they set foot on your property. If you chase them off first, and they come back, that's twice they get to set foot on your land without being arrested.

The added benefit is, the next time you call, you can tell the dispatcher that the people trespassing have already been issued a criminal trespass warning; the response time is generally quicker, as the officer knows he'll definately be making an arrest. Plus, if anything strange does happen on your property, the police already have names & addresses - something they would not have if you chase them off yourself.

Of course, this doesn't cover an antagonistic trespasser, which is a whole other ball of wax - but it probably covers the majority of actual trespassing situations.

 

[1911Tuner]

A good many who trespass either aren't even aware that they're trespassing...or they're seeking information, directions, or something of a benign nature.

I was tracking a deer once, and was on private property within a few hundred yards. There were no fences and no signs. I simply wandered onto the property while preoccupied. A voice called out from about 50 yards, telling me that I was on private property.

I apologized as the property owner approached...an older gentleman...explaining what I'd done. He was receptive, and accepted my explanation and apology...and we had a nice conversation about guns and hunting. He explained that he'd had problems with people camping and leaving a mess for him to clean up, and that he was maintaining a vigil to catch them in the act and get their license plate number...because judging from the trash...it was the same group almost every time.

As I bade him goodbye and turned to go, he advised that the buck I was seeking had probably "followed that path" and was likely bedded down in a thicket that he pointed to at the top of a cutover that the state had cleared for power lines. "That's probably where you'll find him." He grinned and told me that a shared bit of the meat would be nice...and an unspoken deal was struck. He gave me permission to hunt his land, and I did for the next 5 years. I never brought anyone else with me, and he always had a little venison in his freezer when I was successful.

It could have easily gone the other way had he been hostile and armed. The best way to handle trespassers is to do so in a cautious but non-threatening manner at first...and judge the situation based on their demeanor and your own "gut" feeling while maintaining a distance buffer zone between you. They probably don't have bad intentions...but it would be unwise to count on it.

The old gent whose property line I'd violated became a friend who turned out to be a wily chess player with many interesting stories to tell. When he died, I missed him for a long time.

 

[Kleanbore]

For example, in Florida the courts have ruled that only the discharge of a firearm constitutes deadly force. Pointing a gun at someone is, as a matter of law, the use of non-deadly force.

True. But Floridians have been been given prison sentences for pointing even empty guns at people. Aggravated assault.

 

[M2 Carbine]

True. But Floridians have been been given prison sentences for pointing even empty guns at people. Aggravated assault.

While the trespasser was on the landowner's property?

A good many who trespass either aren't even aware that they're trespassing...

Good story. Never know where you are going to find a good friend.

 

[green-grizzly]

In my state brandishing would get you felony charges.

 

[ezypikns]

What a great story.

The old gent whose property line I'd violated became a friend who turned out to be a wily chess player with many interesting stories to tell. When he died, I missed him for a long time.

You just never know what benefits you'll receive from treating other folks and their property with courtesy and respect.

Thanks for sharing that.

 

[carbine85]

I think here in Ohio we have a Castle Doctrine that gves you the right to protect property, however I think is also says that you can't go outside and shoot someone like the case in Texas. I would use the safe haven of my home and avoid shooting or harm. If you are out in the middle of no were and can't get help then I suppose you have to make a judgement based on your state laws.

 

[bdickens]

Also, SuperMagnum, understand that in many states, there is a duty to retreat, even on your own property. This means that if there's a trespasser, whether or not he's doing something illegal, you MUST retreat away from him using any reasonable means available before using lethal force to defend yourself.

What in the world is a "duty to retreat?" That is the most insane, assinine thing I've ever heard of.

Here in Texas, "duty to retreat" would mean that the individual with nefarious intentions has a duty to retreat before he comes down with a case of severe lead poisoning.

 

[Frank Ettin]

What in the world is a "duty to retreat?" That is the most insane, assinine thing I've ever heard of...

It may be asinine, but it is still the law some places. Not every place is Texas. People who live in some other states but conduct themselves as if they lived in Texas can risk spending an extended period of time picking up soap in the showers for guys with no necks.

 

[Kleanbore]

What in the world is a "duty to retreat?" That is the most insane, assinine thing I've ever heard of...

It's something that goes back in law for a little less than a thousand years. It has been eliminated in some states, including Texas.

Until some time in 2007, it was the law in Texas, too.

I'm not real sure what it has to do with trespassing. In most places, the remedy for trespassing is to have the police ask the trespasser to leave.

 

[ar10]

I've had a couple of problems with kids climbing my fence and cutting through the back yard to get to the next street over. Once I stopped a couple of them and got their picture on my cell phone. It happened again a few months later, that's when I let the dog out. You would believe how fast they went back the way they came. That was 15 yrs ago and I've never had a problem since.
Criminal Trespassing is NOT a violent crime. My advice would be call the police, file a complaint, be a good witness, and if possible get a picture.
Oh, and don't forget to the "Beware of Dog" sign.

 

[DHJenkins]

These days, you'd probably get sued and your dog put down if 'god forbid' it bit a trespassing kid.

 

[Avenger29]

I live in the country, and live a good ways away from any neighbors. We have a pretty large property.

I've had problems with trespassers in the past. No problems with kids, the closest neighbors are too far away. It's always adults.

The ones that are genuinely lost or need help are usually no problem, they'll leave once you inform them of where they are, and they'll be polite about it.

Then there are trespassers that trespass willingly in full knowledge of what they are doing. These can be dangerous, particularly if you are confronting them while alone and far away from the house. They'll actually try to argue with you or intimidate you. Notice these aren't the brightest people, and sometimes I'll have to convince them to leave with some extra persuasion.

 

[bdickens]

"Duty to retreat" is the most assinine legal concept I've ever heard of. The very idea that a citizen should be duty bound to cede one inch of real estate, whether public or private, to a criminal engaged in a criminal endeavor is insane. It is absolutely immoral and strikes at the very heart of civilized society. If anything, the criminal should cede to the citizen.

Such a concept encourages crime; it gives the criminal the legal upper hand by presuming him to have greater freedom of movement and greater right-of-way than the law abiding.

 

[Frank Ettin]

...Such a concept encourages crime; it gives the criminal the legal upper hand by presuming him to have greater freedom of movement and greater right-of-way than the law abiding.

Swell, but it's still the reality in many places. One ignores reality at his peril. Enjoy your alternate universe. I live in the real world.

 

[General Geoff]

Then there are trespassers that trespass willingly in full knowledge of what they are doing. These can be dangerous, particularly if you are confronting them while alone and far away from the house. They'll actually try to argue with you or intimidate you. Notice these aren't the brightest people, and sometimes I'll have to convince them to leave with some extra persuasion.

Precisely why, if I had a large rural property, I'd greet such criminal trespassers at a fair distance, with a slung rifle. Not to be intimidating, but to convey the message that I will not be intimidated by uninvited guests on my own property.

 

[Deltaboy1984]

The best thing to do is go inside call the cops and get pictures.

 

[Zoogster]

No, actually that is not what guns are for. Guns are for self defense when lethal force is justified. Guns are for when a reasonable and prudent person in like circumstances would conclude that lethal force is necessary to prevent immediate death or grave bodily harm to an innocent.

That may be what good lawful people use them for in the United States, but that is certainly not what they were originally for. They were invented for offensive purposes, originally to siege cities.
In fact guns are what changed the world from he who has the best defense wins (castles with things like boiling oil to drop on attackers, backed by well trained forces, easily defended, and which most attackers could never penetrate until the surrender of those inside after they ran out of supplies) to the best offense wins. With castles a few people could defeat a great many. Once gunpowder destroyed the defensive capabilities of castles, it became he who had the most armed men won.



It also is what would eventually lead to our rights.
No longer could tyrants with thier knights (LEO) retreat to thier keep and defeat any peasant who resisted. Then ride out afterwards and take revenge. Suddenly with the spread of cannon and firearms no defensive structure could be built strong enough to resist all offense.
They also allowed mere peasants who little previous training to becoming formidable firearm shooters in a short time. While knights and bowmen took a lifetime of training, and no peasant (most time spent on a farm with limited education) could ever defeat them in combat. Except of course with an armor piercing crossbow, which was similarly forbidden and outlawed many places for just that reason.
It took a lot longer to become the best martial artist, than to learn how to shoot a firearm well. Which meant the benefit always went to those with paid room and board in the service of the nobility, rather than the peasant whose life was spent toiling in the field.
So it is actually offensive capabilities of firearms, thier simplicity, and widespread ownership that slowly led to the rights of the people. Not defensive use.


So likewise they are actually protected under the Constitution for offensive purposes, rather than defensive ones. The intent originally being that all the citizens of the United States, with thier arms were a greater force than any force which could be assembled against them. That the tools for an effective insurgency like the one fought against the former government (British) were always available. They of course having weapons on par with the military forces of the world at the time, including those of thier own government.

So just to clarify, your arms are not protected under the Constitution so you can shoot criminals with them, even in defense. That was already normal at the time, and something people did even in Jolly England at the time perfectly legally. So was not something unique added under the Constitution or the 2nd. Everything added under the Constitution were rights they felt were not recognized at the time of the revolution. Such as free speech. Not having to quarter soldiers, etc
The 2nd was a new unique right, it was so the people always had the tools to do exactly what the new government (rebels) had just done to England, if it ever became necessary again.

 

[Zoogster]

On the specific issue, the showing of a firearm in some states is a crime. In others it is not.
The pointing of the firearm is a crime in most, in a couple it is not.


In most states assault with a deadly weapon, also classified under aggravated assault in some states, is a felony.
Assault is just the threat. Pointing a gun at someone for example is assault with a firearm. Firing it is an entirely different crime.
Telling someone you are going to use that gun, or implying you will even if it is on your hip, or slung on a shoulder is legally the same thing as pointing it at them.
It is a threat of deadly force with that weapon, an assault with a deadly weapon, a felony charge.

Many states allow such an assault or use of deadly force in certain circumstances, and not in others.
Self defense creating a legal justification for the breaking of that law. Just as the threat of deadly force against you becomes a legal defense against committing the crime of homicide, resulting in a justifiable homicide.
Yet the action itself is still a crime, a crime merely justified if certain criteria are met, and not justified if they are not. That criteria varies by state.
So you need to know your state law.


As a property owner you are responsible for your property. Everything that goes on, what is being done on it, and allowing or not allowing its use. In fact in many situations if you as a property owner refuse to confront people using your property, such as crossing over it, then you can lose legal control of that property in the future through easements, or even adverse possession (you simply lose ownership over property you paid for to people who have not paid for it.) Hiding in your house to avoid confrontations would not be a legal defense in civil court.
If you rely on the police for petty things and call them regularly, they will start taking hours to respond. So in the end it really is your responsibility to enforce your rights on your own property.
Yet it is illegal for you to do so from the barrel of a gun in most states.


While if you go out with a gun on you to confront someone who is doing something on your property, they then attack you and at some point you use that firearm to defend yourself, the prosecutor will present it differently.
The prosecutor will make it seem like you grabbed the gun and went out intending to use it, and shot them. Murder in many places.
The difference is very slight. The evidence remaining will be almost the same for either situation.
Just as many people who go out to stop a car thief and end up shooting them do go to prison, you may even if you committed no crime.
You may say you never intended to shoot them, merely brought the gun just in case while trying to stop the crime which is perfectly legal. The prosecutor will say you did intend to shoot them, and brought the gun intending to do so.
Who will the jury believe? That determines your fate.

 

[MT GUNNY]

If it was a person Working for Acorn!................................................

 

[divemedic]

True. But Floridians have been been given prison sentences for pointing even empty guns at people. Aggravated assault.

Since drawing and pointing a gun is considered non-lethal force, any situation where you would be justified in using non-lethal force, pointing a gun would be legal self defense.

 

[BushyGuy]

what would Tony Sopranos do if a tresspasser was on his property, i doubt it very much someone like him would choose the duty to retreat , first of all they shouldnt be on private property in the first place...if all states had the same laws as Texas then i think the US crime rate will be hellava lot lower..

 

[bdickens]

fiddletown, I enjoy my alternate universe quite well, thank you.

That's pretty funny when you think about it; a Californian telling someone in a state with sensible self-defense laws that he lives in an "alternate universe."

 

[mljdeckard]

I very much agree with fiddletown. REGARDLESS of whether or not I am protected by a 'stand your ground' law, I will absolutely retreat if I can. Deadly force is only to be used when there is no other alternative. Retreating is an alternative. All it takes is an ambitious D.A. and a judge who has been sleeping on the couch for a while and the next thing you know, a jury will be deciding whether or not your shoot was covered by the 'stand your ground' law, and hoping that they feel as strongly as YOU about how stupid it is to retreat.

Besides the legal aspects, I still genuinely don't want to shoot someone if I don't have to. I'm not going to shoot them just because I can get away with it.

 

[Kleanbore]

"Duty to retreat" is the most assinine legal concept I've ever heard of. The very idea that a citizen should be duty bound to cede one inch of real estate, whether public or private, to a criminal engaged in a criminal endeavor is insane.

The original idea, as I understand it, was to enable the court distinguish between justifiable homicide and unlawful deaths resulting from murder, the result of consensual combat, and negligent homicide and the like.

The actor's having "retreated to the wall" would serve as evidence that he had no desire to kill and had done so only due to immediate necessity.

This didn't originally apply within the domicile, and it went back a long way before the advent of firearms. You cannot outrun a bullet.

Case law and statute have eliminated the duty to retreat in many jurisdictions. But the requirement that the use of deadly force be immediately necessary--a last resort, as it were--remains everywhere.

An attempt to retreat, if feasible, just might be still the best evidence that one has that the "shoot" was justified, if the shooting occurred outside the domicile and without witnesses.

One of the things I worry about is being accosted somewhere while with my wife, who cannot move quickly, having to use deadly force, and having scant evidence to support a defense of justifiability. Our testimony sure wouldn't cut it very well.

So--the concept of retreat had its purpose, and it may still have whether required or not, and avoiding a confrontation has several.

You would never find me assuming the physical and legal risks of confronting a trespasser. I'll let the law handle it.

How they will handle it should give some idea of what the citizen's limits are. They may issue a citation. In some jurisdictions they may seek a warrant for arrest. In a few circumstances they may even effect an arrest without a warrant. But they will not use deadly force.

Nor will any citizen with adequate knowledge, education, and common sense.

All downside, no upside at all.