It’s the law: Criminal and civil trespass
by Gary Redenbacher
Jan 10, 2013 | 1364 views | 0 0 comments | 10 10 recommendations | email to a friend | print

In my most recent column, I wrote about wandering through an unfinished shopping center with my friends when a security guard started roaring epithets at us and gave chase (Page 12, Nov. 30). Under great fear, we kids narrowly escaped. The question is whether we were trespassing. 

The law defines trespass many ways, and this column cannot hope to cover all the permutations. I will concentrate on the unauthorized entry onto land by a person.

We must first distinguish between civil trespass and criminal trespass. One can commit a civil trespass simply by negligently wandering onto another’s property. On the other hand, one must have specific intent to commit a criminal trespass.

So, if you’re happily weed whacking but accidentally mosey onto your neighbor’s property and mow down his herbs, which you thought were weeds, you might be guilty of civil trespass, but you will likely not get charged with criminal trespass.

Intent, however, is a tricky thing. You cannot, for example, claim no intent to harm if you fire a gun into a barn when you can hear that people are in there having a hoedown. Such recklessness will be equated with intent.

Although injunctions are available, most people don’t bother going to court for civil trespass issues unless there has been damage to their property.

In the early 1970s, I had a paper route. One of the customers I delivered to got remarkably upset if the paper was not delivered on the front porch. The step in front of the porch was not good enough. Grumpy also tried to grow and maintain a lawn of dichondra, a substitute for grass that is difficult to maintain and tolerates very little foot traffic. If it is a frosty morning, walking on dichondra kills it.

One chilly morning, I flung my paper from the sidewalk toward Grumpy’s porch. It landed on the step, not the porch. Wanting to spare my mother the inevitable 6 a.m. screaming phone call (I’m not making this up), I got off my bike to drop the paper two feet closer to the door.

The problem, however, is that the driveway was completely blocked, and the only path to the porch was across the dichondra.

The screaming phone call was a bit different that day, but there was a silver lining — Grumpy canceled the paper, and I never had to deal with him again.

So, all you students of law, did I commit civil trespass?

I was probably negligent in traipsing over the dichondra, and there was damage. I’d defend that I had implied permission to cross the land, because Grumpy insisted that the paper be within two feet of his door. Grumpy would counter that even if implied permission were true, that didn’t give me the right to mush his sacred dichondra. I’m not sure how a judge would rule. I would just have to hope she didn’t have a dichondra lawn.

Let’s return to criminal trespass. As I alluded to above, there are many situations that give rise to criminal trespass. Some forms require a warning to leave; others require the proper posting of signs.

Most forms of criminal trespass, however, have two common elements — the aforementioned deliberate intent to go onto another’s property and, second, an intention to interfere with the owner’s property rights.

The interference can take different forms. Intentionally entering a residential dwelling without permission is interfering with one’s right of exclusive possession. Taking someone’s herbs is another form of interference. 

There can be no denying that we kids intended to wander around the shopping center. The bigger question is whether we specifically intended to interfere with the owner’s property rights. Probably not.

It would have been criminal trespass, however, had we informed the guard where to stick it after he gently requested that we vacate the premises. At that point, we would be intentionally interfering with the owner’s right to exclude us.

Did we commit a civil trespass? Probably, but since we didn’t damage anything, the most the owner could hope for would be an order from the court telling us not to do it again. That, however, wouldn’t be necessary.

After our harrowing escape from the security guard, we all agreed there were safer places to explore.

- Gary Redenbacher of Scotts Valley is an attorney in private practice. Email him at gary@redbrownlaw.com.

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