Trespassing Question

[IndyGunSafety]

Tonight I told a man to leave my property and that he was trespassing. He went to leave and then came back toward me, bowed up and got in my face. I stood my ground and told him to leave as he was trespassing. (Argument between him and his ex girlfriend took place on my property, he was not invited.) He then went around me, walked another 75 feet closer to my home, away from his car. I kept thinking, do I really want to use REASONABLE force to get this guy off my property? He said he was going to retrieve an item in the yard that was his. He got it and left.

Officer Hawkins of the Fishers Police Department gave me his "word of caution" speech and told me that I could not use any force to get a person off of my property. He went further to say that only law enforcement could do so if a formal complaint was filed, then served to the person, and that they had to then break that trespassing notice in order to be charged. IS THIS CORRECT?!?! Let's hear it you lawyer types!

I was armed, certainly would not have drawn, and managed to keep my cool.

 

[Denny347]

Down here in Indy you would have been fine. Just don't beat the daylight out of him. Also, make sure you do not bite off more than you can chew.

 

[IndyGunSafety]

That does not exactly tell me what the law is or give case law examples.

 

[MyGlockRocks19]

tagged...I had a similar situation crop up, and didn't use force, though to be honest it crossed my mind. I'd like to hear the answer to this question as well.

 

[Hotdoger]

Tonight I told a man to leave my property and that he was trespassing. He went to leave and then came back toward me, bowed up and got in my face. I stood my ground and told him to leave as he was trespassing. (Argument between him and his ex girlfriend took place on my property, he was not invited.) He then went around me, walked another 75 feet closer to my home, away from his car. I kept thinking, do I really want to use REASONABLE force to get this guy off my property? He said he was going to retrieve an item in the yard that was his. He got it and left.

Officer Hawkins of the Fishers Police Department gave me his "word of caution" speech and told me that I could not use any force to get a person off of my property. He went further to say that only law enforcement could do so if a formal complaint was filed, then served to the person, and that they had to then break that trespassing notice in order to be charged. IS THIS CORRECT?!?! Let's hear it you lawyer types!

I was armed, certainly would not have drawn, and managed to keep my cool.

What did the guy say when he "got in your face"?

Intimidation?

http://www.in.gov/legislative/ic/code/title35/ar45/ch2.pdf

Also:

[FONT=TimesNewRoman,Bold][FONT=TimesNewRoman,Bold]

IC 35-43-2-2​

[/FONT][/FONT][FONT=TimesNewRoman,Bold][FONT=TimesNewRoman,Bold]

Criminal trespass; denial of entry; permission to enter; exceptions​

[/FONT][/FONT]

Sec. 2. (a) A person who:
(1) not having a contractual interest in the property, knowingly
or intentionally enters the real property of another person after
having been denied entry by the other person or that person's
agent;
(2) not having a contractual interest in the property, knowingly
or intentionally refuses to leave the real property of another
person after having been asked to leave by the other person or​

that person's agent;

http://www.in.gov/legislative/ic/code/title35/ar43/ch2.pdf



Didn't see anything in there about having to file a complaint with Officer Hawkins first.

 

[IndyGunSafety]

Didn't see anything in there about having to file a complaint with Officer Hawkins first.

I know! Why can a bouncer choke a guy half to death to get him out of a club if this is the case?

Anyway he's about 4 feet tall and 125 pounds. So his size did not intimidate me, but he said "you don't want to **** with me", lololol!

 

[4sarge]

REASONABLE force to get this guy off my property?
Officer Hawkins of the Fishers Police Department gave me his "word of caution" speech and told me that I could not use any force to get a person off of my property. He went further to say that only law enforcement could do so if a formal complaint was filed, then served to the person, and that they had to then break that trespassing notice in order to be charged. .

I think that Officer Hawkins is mistaken

 

[glockpatriot]

You know what, if someone comes onto my property without my permission, and I tell this person to leave and they do not, I guarantee you, this trespasser will either leave on his own right then and there, or he will be carried off by me, PERIOD!

 

[sloughfoot]

An emotionally charged situation like this will always cause a good man to second guess his actions and reactions after it is over. You already know that lethal force was not appropriate in this case. You also know that this could have changed in a second if he had done something different than just retrieving the item. You already know that you are not justified in using deadly force to simply get someone to leave your property.

You done good. Let it rest. Nobody got hurt. Ego doesn't matter.

 

[Fargo]

Tonight I told a man to leave my property and that he was trespassing. He went to leave and then came back toward me, bowed up and got in my face. I stood my ground and told him to leave as he was trespassing. (Argument between him and his ex girlfriend took place on my property, he was not invited.) He then went around me, walked another 75 feet closer to my home, away from his car. I kept thinking, do I really want to use REASONABLE force to get this guy off my property? He said he was going to retrieve an item in the yard that was his. He got it and left.

Officer Hawkins of the Fishers Police Department gave me his "word of caution" speech and told me that I could not use any force to get a person off of my property. He went further to say that only law enforcement could do so if a formal complaint was filed, then served to the person, and that they had to then break that trespassing notice in order to be charged. IS THIS CORRECT?!?! Let's hear it you lawyer types!

I was armed, certainly would not have drawn, and managed to keep my cool.

The cop is absolutely incorrect as to what the elements of criminal trespass are:

IC 35-43-2-2
Criminal trespass; denial of entry; permission to enter; exceptions
Sec. 2. (a) A person who:
(1) not having a contractual interest in the property, knowingly or intentionally enters the real property of another person after having been denied entry by the other person or that person's agent;
(2) not having a contractual interest in the property, knowingly or intentionally refuses to leave the real property of another person after having been asked to leave by the other person or that person's agent;
(3) accompanies another person in a vehicle, with knowledge thatthe other person knowingly or intentionally is exerting unauthorized control over the vehicle;
(4) knowingly or intentionally interferes with the possession or use of the property of another person without the person's consent;
(5) not having a contractual interest in the property, knowingly or intentionally enters the dwelling of another person without the person's consent;
(6) knowingly or intentionally:
(A) travels by train without lawful authority or the railroad carrier's consent; and (B) rides on the outside of a train or inside a passenger car, locomotive, or freight car, including a boxcar, flatbed, or container without lawful authority or the railroad carrier's consent;
(7) not having a contractual interest in the property, knowingly or intentionally enters or refuses to leave the property of another person after having been prohibited from entering or asked to leave the property by a law enforcement officer when the property is:
(A) vacant or designated by a municipality or county enforcement authority to be abandoned property; and
(B) subject to abatement under IC 32-30-6, IC 32-30-7, IC 32-30-8, IC 36-7-9, or IC 36-7-36; or
(8) knowingly or intentionally enters the property of another person after being denied entry by a court order that has been issued to the person or issued to the general public by conspicuous posting on or around the premises in areas where a person can observe the order when the property:
(A) has been designated by a municipality or county enforcement authority to be a vacant property or an abandoned property; and
(B) is subject to an abatement order under IC 32-30-6, IC 32-30-7, IC 32-30-8, IC 36-7-9, or IC 36-7-36;
commits criminal trespass, a Class A misdemeanor. However, the offense is a Class D felony if it is committed on a scientific research facility, on a key facility, on a facility belonging to a public utility (as defined in IC 32-24-1-5.9(a)), on school property, or on a school bus or the person has a prior unrelated conviction for an offense under this section concerning the same property.
(b) A person has been denied entry under subdivision (a)(1) of this section when the person has been denied entry by means of:
(1) personal communication, oral or written;
(2) posting or exhibiting a notice at the main entrance in a manner that is either prescribed by law or likely to come to the attention of the public; or
(3) a hearing authority or court order under IC 32-30-6, IC 32-30-7, IC 32-30-8, IC 36-7-9, or IC 36-7-36.
(c) A law enforcement officer may not deny entry to property or ask a person to leave a property under subsection (a)(7) unless there is reasonable suspicion that criminal activity has occurred or is occurring.
(d) A person described in subsection (a)(7) violates subsection (a)(7) unless the person has the written permission of the owner, owner's agent, enforcement authority, or court to come onto the property for purposes of performing maintenance, repair, or demolition.
(e) A person described in subsection (a)(8) violates subsection (a)(8) unless the court that issued the order denying the person entry grants permission for the person to come onto the property.

Also, the use of force statute provides:

IC 35-41-3-2
Use of force to protect person or property
Sec. 2. (a) A person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.
(b) A person:
(1) is justified in using reasonable force, including deadly force, against another person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle.
(c) With respect to property other than a dwelling, curtilage, or an occupied motor vehicle, a person is justified in using reasonable force against another person if the person reasonably believes that the force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in the person's possession, lawfully in possession of a member of the person's immediate family, or belonging to a person whose property the person has authority to protect. However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
only if that force is justified under subsection (a).
(d) A person is justified in using reasonable force, including deadly force, against another person and does not have a duty to retreat if the person reasonably believes that the force is necessary to prevent or stop the other person from hijacking, attempting to hijack, or otherwise seizing or attempting to seize unlawful control of an aircraft in flight. For purposes of this subsection, an aircraft is considered to be in flight while the aircraft is:
(1) on the ground in Indiana:
(A) after the doors of the aircraft are closed for takeoff; and (B) until the aircraft takes off;
(2) in the airspace above Indiana; or
(3) on the ground in Indiana:
(A) after the aircraft lands; and
(B) before the doors of the aircraft are opened after landing.
(e) Notwithstanding subsections (a), (b), and (c), a person is not justified in using force if:
(1) the person is committing or is escaping after the commission of a crime;
(2) the person provokes unlawful action by another person with intent to cause bodily injury to the other person; or
(3) the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.
(f) Notwithstanding subsection (d), a person is not justified in using force if the person:
(1) is committing, or is escaping after the commission of, a crime;
(2) provokes unlawful action by another person, with intent to cause bodily injury to the other person; or
(3) continues to combat another person after the other person withdraws from the encounter and communicates the other person's intent to stop hijacking, attempting to hijack, or otherwise seizing or attempting to seize unlawful control of an aircraft in flight.

Per the bolded part, if he is on your curtilage you may use reasonable force, including deadly force, as is NECESSARY to terminate the illegal entry of your curtilage. If not on your curtilage, you may use reasonable force to terminate the entry, but may only use deadly force if justified under Sub. A which is the "necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony." clause. Note that 35-41-3-2(c) specifically mentions "trespass" and 35-41-3-2(b)2 specifically mentions "unlawful entry".

Not legal advice, just my opinion.

Best,


Joe

 

[INGunGuy]

Just remember the definition of Curtilage


Curtilage is the immediate, enclosed area surrounding a house or dwelling. The U.S. Supreme Court noted in United States v. Dunn, 480 U.S. 294 (1987), that curtilage is the area immediately surrounding a residence that "harbors the `intimate activity associated with the sanctity of a man's home and the privacies of life.'' Curtilage, like a house, is protected under the fourth amendment from "unreasonable searches and seizures.''
Determining the boundaries of curtilage is imprecise and subject to controversy. Four of the factors used to dtermine whether to classify the area as curtilage include:
1) The distance from the home to the place claimed to be curtilage (the closer the home is, the more likely to be curtilage);
2) Whether the area claimed to be curtilage is included within an enclosure surrounding the home;
3) The nature of use to which the area is put (if it is the site of domestic activities, it is more likely to be a part of the curtilage); and
4) The steps taken by the resident to protect the area from observation by people passing by (shielding from public view will favor finding the portion is curtilage).



INGunGuy

 

[Ashkelon]

Officer Hawkins is thinking of trespass in the environment of the commercial context. As a merchant that wishes to have someone prosecuted for trespass the State will require that that person be given notice previously that they are not welcome on the premises. That person otherwise is a business invitee like any other potential paying public customer.

YOU however; are not inviting and/or asking people to come onto your property. It is for private use and those at your invite. Not for people to just walk up and invade your personal space.

I agree with the previous poster Denny if you are in Indy. But being in Hamilton County you would want to be able to have independent backing of specific facts that showed he was an aggressor and refused your requests to vacate your property. Situations such as yours are often the judgment call of the screening prosecutor and that of an arresting officer. Have seen instances such as your wherein a person like yourself gets charged with battery and left wondering "why in the he** isn't that guy charged with trespass?"

 

[mike4sigs]

Question

ok this brings up a question (mine and maybe otheirs) how does pertain to people who rent apt, houses (if at all does that fall into another catagory)

 

[ArmedProgrammer]

My understanding (as a landlord) is that when you rent the premises, you have all of the rights of the the owner. With the obvious exceptions of a) you can't take out a loan on the place, etc and b) whatever is signed away in the lease agreement.

To put it another way... most of your rights as a renter are by virtue of you being the LEGAL OCCUPANT of the home - NOT as a result of OWNERSHIP per se. For that reason, except under certain cicumstances, I as a landlord, CANNOT just walk into your house! Even though I own it! I either need to give you notice that I need to make a repair (usually 24 hrs notice - less if you agree it's ok - and if your toilet's backed up, you WILL agree! ) OR I can enter if there's an obvious emergency (fire, I hear water running in a bathtub continuously, etc.) Then I can protect my investment... In several years of landlording I've never had to use that.

So the 25 centavo answer to this: it should be NO DIFFERENT for a renter than an owner. All other comments above apply.

One more thing... in an apartment complex, the apartment you rent is yours, but COMMON AREAS (sidewalks, laundry rooms, etc,) You DON'T have control over. Owner/Management has control over those.

 

[Indy317]

Officer Hawkins of the Fishers Police Department gave me his "word of caution" speech and told me that I could not use any force to get a person off of my property. He went further to say that only law enforcement could do so if a formal complaint was filed, then served to the person, and that they had to then break that trespassing notice in order to be charged. IS THIS CORRECT?!?!

A few things here. I am not exactly sure what was said, but I will state this:
I am certain you can use force to protect your home and property if an action is perceived as a threat, but I would also issue a word of caution. If the person is not a threat in terms of a person's safety, nor does it appear they are going to damage property, I wouldn't use any force to remove them from my property. I may or may not ask them to leave, depending on the circumstances. (I will go into more of why at the end).

Second, in Indiana, if a property owner or an agent of the property owner tells someone to leave the property and they refuse, they have committed criminal trespass, a Class A misdemeanor. Another part of the trespass statue sounds like what the officer was talking about, and that is that an owner and/or agent of owner gives a person a written or verbal notice that they have been denied entry into or upon the property. If the person comes upon or into the property, they have committed criminal trespass, a Class A misdemeanor.

Now, say you tell a person to leave the property, they refuse. You call the cops, and just before the cops leave, the person leaves. The cops can't outright arrest the person in most cases because the crime is a misdemeanor. They can lawfully detain the person to get their information, and could even issue them a summons to appear, but they can't outright arrest the person. In order for an officer to outright arrest in this situation, they would have to witness the person on your property, witness you order them to leave, and then witness the person fail to leave. So if that doesn't happen, the officer then has to take your statement, any statement the suspect provides, and type out a probable cause and submit it to the prosecutor's office. If a summons's was issued and the prosecutor chooses to file charges, then they will just wait till that person's court day to formally file the charges. If no summons's was issued by the officer, the prosecutor can either issue a summons to appear, or an arrest warrant.

To make matters worse, prosecutors can be very particular on certain things. For example, the above where you tell the person to leave, they don't, but leave before the cops arrive, or leave the second time you tell them to with officers present, the initial refusal to leave is still a violation of the law, but unless the suspect admits to it, it is nothing more than a he said he said type case. So some county prosecutors may decide they won't go with that kind of case. They may know that the juries and/or judges pretty much give defendants the benefit of the doubt, so therefore they may feel it is a waste of time in that county. With the trespass warning ticket, usually the person signs, and there are carbon-less copies, so if the person comes back, the officer can use the original ticket and report as evidence, which makes the case even stronger.

Now, back to the "word of caution." This case, as presented by you, doesn't have enough facts: Was the person initially an invitee, either by you or someone else? How did his property end up on your property? You may be totally justified in removing a person from your property, but make sure that you _never_ invite them in the first place. Also, you will notice the term "contractual interest" in the law. Contractual interest is not defined in the Indiana Code (that I can find). A question in this case would be "Does the fact the person has personal property laying upon the other person's property, and the person has clearly stated his intent is to only retrieve his personally owned property then leave...does this give that person a short term, temporary contractual interest in the property?" The main issue is that of civil lawsuits. It doesn't matter what _you_ want or what _you_ think of such a lawsuit (say you pushed him off your property, he fell, hurt himself in some manner _and_ you admitted like you did to us that he did have his property on the yard and his only comment for coming back to the yard was to get his property), it matters only to your home owners insurance company. My understanding is that if they think they should settle, they will settle and the home owner can't keep them from settling.

Now, how much are you paying in property taxes? Why not make that money you are paying go to protect you by letting the cops deal with this? You are paying for police service, so I would strongly urge to go that route. Say you decide to take action, and it is "legal" in terms of you won't get any criminal charges against you. You still may get caught up in a civil suit. Also, what if it escalates? Do you _really_ want to get into a deadly force situation, even if you are 100% in the right? And that is only a question if _you_ win. What if you lose? What if you win, but the person is so furious that you dare to lay a hand on him, that he returns with a can full of gas and matches at 2AM? These are just things to think about. Some folks could careless if the cops lay hands on them, arrest them, etc., as they don't take it personal, and view this as the job of an officer. Yet if someone else touches them, especially something involving an ex-gf/domestic situation, they might totally go off the deep end.

The only other thing I would suggest is that you:
#1: Contact the police and ask how they go about giving trespass warnings. If they offer a service to deliver such a warning in person, to the person, then I would request that service (note: My guess is that if departments take this step, they likely would have some sort of distance limit). Note: Even with the trespass warning, if the cops show up and the person has moved off your property, and they didn't witness the trespass, they still can't outright arrest for that misdemeanor).

#2: I would also strongly urge the ex-gf in this situation to seriously consider a restraining order, if she meets the requirements for such an order. If the person is known to live with you/stay at your place, they can add you and your address as a place that is to not be visited by the person receiving the order. This is better than a simple trespass issue because invasion of privacy is one misdemeanor the officers can arrest on without witnessing the actual violation.

 

[Denny347]

That does not exactly tell me what the law is or give case law examples.

Well sorry, case law for this particular subject is scarce, or just difficult to track. The law...well, that is easy enough to find. Google "criminal trespass Indiana" and all questions about the elements of this particular law will be answered. As shown by subsequent posters that cut and paste the IC code or it.

 

[Phil502]

Just because Hawkins is a LEO does not mean he knows every detail of every law, even if he pretends to by giving you advice that does not seem reasonable to me or correct according to the statutes provided above.

 

[ocsdor]

He said he was going to retrieve an item in the yard that was his. He got it and left.

Here is where enforcing the "trespassing" part may give you some trouble. [I believe] People do have the legal right to retrieve their property.

Example: If I parked my car on your property (accidently or otherwise), you could not prevent me from getting my car back.

If he wasn't trying to retrieve his property, then you may have a case for using reasonable force. However, you may first find yourself being charged with battery and explaining your defense of using reasonable force to a jury.

The officer's advise may not be legally correct, but may still be good advice nonetheless.

fyi: I have had major issues with trespassers (and lack of LEO support) in my past, so I feel your pain.


Disclaimer: I am not a lawyer nor am I giving legal advice. This opinion is made based on my amateur study of law.

 

[kludge]

My understanding is that force is not allowed.

Tresspass is a misdemeanor. You can use force to stop a forcible felony. You can do a "citizens arrest" and for a felony with "reasaonable force".

I think the cop was right.

 

[IndyGunSafety]

Here is where enforcing the "trespassing" part may give you some trouble. [I believe] People do have the legal right to retrieve their property.

It WAS NOT his property. That's a whole 'nother story. He was NOT invited.