Is leaning trespassing?
August 17, 2008 11:29 PM   Subscribe

Am I trespassing if I am standing on a public sidewalk, leaning against a wall that directly abuts the sidewalk?

Me and a friend were just stopped by a police officer who accused us of trespassing. He made us show him our ID, ran our information and threatened to arrest us for trespassing. Our crime? Stopping on a public sidewalk and leaning against a wall that directly abuts the sidewalk for about 15 minutes.

Quick Summary - Me and a friend were walking around, we stopped on the sidewalk and wait around for some friends. We both stood on the sidewalk and leaned up against the wall. We were not obstructing anybody else on the sidewalk, it is wide enough for people to walk by unhindered by us. After about 15 minutes we decided not to wait any longer and left. A police officer stopped us about 100 ft. away and asked to see our IDs. I asked him if we were being detained, and if so, what we were being detained for. He said that we were being detained, for trespassing. I asked where we were trespassing and he said we were sitting on "his wall". I said that we weren't on the wall, but standing on the sidewalk. He said that this was still trespassing, and demanded our IDs. We provided them, he ran our information and when it came up that we didn't have any warrants, he let us go warning that we could be arrested for trespassing if we came back.

To be totally clear, this is DEFINITELY a public sidewalk, and a public street. There are no "No Trespassing" or "Private Property" signs anywhere in the immediate area. The wall starts immediately where the sidewalk stops (it's not like sidewalk, strip of grass, wall - just sidewalk, wall). The street/sidewalk runs through a public university and the officer worked for that university - not the city.

I think this cop was being ridiculous, the wall physically prevented us from trespassing, the definition of trespassing says that you must enter the property and it's pretty clear that we didn't enter it.

Can anybody confirm or deny whether leaning on or touching a wall/building is trespassing? The only source I could find was this "Sitting against a building is not trespassing
This is one we hear about a lot. People leaning up against a building are told they are trespassing and are asked to move along. Nothing could be further from the truth; it is a physiological impossibility to be "on" or "in" a building that one is leaning against, even if there is some commingling of subatomic particles. "
which I got from The Street Spirit. This happened in Richmond, VA.
posted by youthenrage to Law & Government (24 answers total)
Is this a large university with an actual campus police force, or a smaller school that hires uniformed guards? If it were a real police officer, I would that that maybe if he really wanted to be a dick, he could have arrested you for trespassing. But that's doubtful. Even if he did, I doubt anything would come of it and you'd walk. It sounds like he saw you guys hanging around and probably thought something more suspicious or sinister was going on (drugs), and used the trespassing nonsense as an excuse to question you.
posted by Venadium at 11:43 PM on August 17, 2008

The street spirit thing is meaningless (as a general guideline, Berkley may be a special case) as there is no need to enter a building to be trespassing. Many places buildings are not built with a zero front lot line and are instead a few inches or even a foot or two back from the front edge of the property. Paving over my front yard doesn't make it a public space. So it is quite possible to be standing on a sidewalk and yet still be on private property. If the property owner asks you to leave and you either don't or you return you can be charged with trespassing regardless of signage.

However your writeup doesn't mention being asked to leave in which case you probably weren't trespassing unless you'd been asked at sometime in the past.
posted by Mitheral at 11:48 PM on August 17, 2008

Almost the exact same thing happened to me a few weeks ago. I was waiting for a friend on a public sidewalk for about 10min, leaning against a curb that backed up to a private parking lot. Got stopped and 'papers please'.

It sounds like you are thinking of filing a complaint or something to that effect. I wouldn't worry about arguing the technical details of the law; the guy who reads the complaints I doubt is a property law attorney. I would just describe the facts as you have here: it is entirely unreasonable to be detained and questioned by an officer for leaning on a wall waiting for a friend.

And in fact depending on your state you might have no actual obligation to provide an officer with identification (other than perhaps your name). You might want to check into your state statutes on that.
posted by norabarnacl3 at 5:17 AM on August 18, 2008

You mentioned that the street and sidewalk ran through the university which may mean that they are not "public". They most likely belong to the university which means, "private". It still sounds like the cop was being an A-hole with a power trip but then again you are not giving us the complete story. Obviously, if it was a remote area at 3am, that is popular with taggers or skateboarders then maybe it would be in the cop's best interests to get you out of there.

Assuming it was a busy area on an actual public street, the cop can tell you anything to hassle you. And you can tell him anything back to ruffle his feathers, something like a four-letter word and his mother. It depends on how far you want to take it. He didn't ticket you so it's probably just a random threat even if it was actual private property.
posted by JJ86 at 5:37 AM on August 18, 2008

BTW, you are under no obligation to talk to or provide ID to a private university cop or security guard when you are on public property doing nothing wrong. Some state university police have police powers so this is not a universal maxim.
posted by JJ86 at 5:40 AM on August 18, 2008

...under no obligation to talk to or provide ID to a private university cop...
Private universities can have "real" police, too. MIT, for one. They make arrests, etc. Can't speak to your wall issue.
posted by whatzit at 6:06 AM on August 18, 2008

If the wall is an accommodating and comfortable place to rest, and used this way by others, then it might be considered an "attractive nuisance," which could absolve you of trespass. Someone who knows more about law can flesh this out for you, but I just like to say "attractive nuisance."
posted by StickyCarpet at 6:23 AM on August 18, 2008

Va. Code Ann. § 18.2-119

West's Annotated Code of Virginia Currentness
Title 18.2. Crimes and Offenses Generally (Refs & Annos)
+ Chapter 5. Crimes Against Property (Refs & Annos)
+ Article 5. Trespass to Realty (Refs & Annos)
>>§ 18.2-119. Trespass after having been forbidden to do so; penalties

If any person without authority of law goes upon or remains upon the lands, buildings or premises of another, or any portion or area thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian or other person lawfully in charge thereof, or after having been forbidden to do so by a sign or signs posted by such persons or by the holder of any easement or other right-of-way authorized by the instrument creating such interest to post such signs on such lands, structures, premises or portion or area thereof at a place or places where it or they may be reasonably seen, or if any person, whether he is the owner, tenant or otherwise entitled to the use of such land, building or premises, goes upon, or remains upon such land, building or premises after having been prohibited from doing so by a court of competent jurisdiction by an order issued pursuant to §§ 16.1-253, 16.1- 253.1, 16.1-253.4, 16.1-278.2 through 16.1-278.6, 16.1-278.8, 16.1-278.14, 16.1-278.15, 16.1-279.1, 19.2-152.8, 19.2-152.9 or § 19.2-152.10 or an ex parte order issued pursuant to § 20-103, and after having been served with such order, he shall be guilty of a Class 1 misdemeanor. This section shall not be construed to affect in any way the provisions of §§ 18.2-132 through 18.2-136.
posted by lockestockbarrel at 6:39 AM on August 18, 2008

"it is entirely unreasonable to be detained and questioned by an officer for leaning on a wall waiting for a friend."

Yeah, right. I'm sure the police complaint department will see it that way, too. As a general rule, what went on above is completely kosher. Being able to figure out why people are loitering in a public place is necessary for crime prevention.

"you are under no obligation to talk to or provide ID to a private university cop or security guard when you are on public property doing nothing wrong. Some state university police have police powers so this is not a universal maxim."

It should be added that guessing wrong on this issue can end very badly for you if you decide to refuse to comply.
posted by toomuchpete at 7:10 AM on August 18, 2008

You obviously weren't trespassing and I doubt the guy with the badge even cared.

That you're asking questions is great but if there's any hint of confrontation (your tone, expression, body language), prepare your reason for some police brutality. It's not always avoidable and if you're getting BS like 'my wall' it's already too late.

It was a rare experience when my discussion of disappearing-left-turn traffic lights was entertained by the officer who pulled me over...

turned out to be a seat-belt check.
posted by pants tent at 7:24 AM on August 18, 2008

Depending on the state, "stop and identify" laws likely don't require you to provide identification, unless you are operating a motor vehicle. Because this was on University property the rules might be different, but in general you shouldn't be getting a "papers please" from a cop in the good ole' USA.

For example in Illinois they can ask for your name and address, but can't demand identification:

(725 ILCS 5/107‑14) (from Ch. 38, par. 107‑14)
Sec. 107‑14. Temporary questioning without arrest.
A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense as defined in Section 102‑‑15 of this Code, and may demand the name and address of the person and an explanation of his actions. Such detention and temporary questioning will be conducted in the vicinity of where the person was stopped.

Find your own state laws here: wiki stop and identify statutes

I learned about this from the case where Michael Righi was arrested outiside of a Circuit City for not showing his receipt at the door.
posted by pipco at 7:49 AM on August 18, 2008

In short: I doubt if you were trespassing, as much as that you ran into a cop on a bad day. And even if you were technically trespassing, I doubt if the case would survive summary judgment. Almost surely, the cop thought you looked suspicious and wanted to see what you were doing.

As I'm finishing up writing this, I've realized that I assume you're a teen throughout this... There's really no basis for that, other than that you seem to being harassed unnecessarily by the cops. So apologies if it's not the case: the assumption isn't so much about you, as much as your treatment..

First, confirming what whatzit says: "private university cop[s]" can be the real deal, and often are. JJ86 does acknowledge this, but I'd encourage you to tread very carefully before assuming any university 'security' isn't 'real'. I wrote police logs for the student paper for a couple years, and nothing (okay, except the cop that hit a pole twice trying to turn around) amused me more than people who found themselves being questioned by our school's cops, and started mouthing off about how they were worthless Rent-a-Cops and how they could beat them up any day, and ended up talking themselves into handcuffs.

Do you know if it was a city cop or not? The fact that he asserted it was "his" wall makes me think that it's either a university campus, or that it was his apartment building and he was being psychotically protective of it.

IANAL, but here's my take—the cop thought a couple teenage (?) kids standing around was really suspicious. When you asserted your rights by asking what was going on, his suspicious grew. He wanted to see what you were up to, hence his questioning. (Teenage kids + standing around = no good, probably selling drugs... At least in his eyes.)

I have no idea what Richmond, VA has for laws, but some places have "stop and identify" laws, others don't. It's possible that his suspicion of you was sufficient grounds for him to detain you and run your IDs.

And you can tell him anything back to ruffle his feathers, something like a four-letter word and his mother. It depends on how far you want to take it.

Legally speaking, sure. But I would strongly recommend against this when you're dealing with a power-hungry cop that's already shown that he doesn't like you. If you're absolutely positive you're doing nothing wrong, it'll just get you hassled more. And if you'd done something illegal, it'd be the difference between, "I observed the suspect trespassing by leaning against a wall which was private property" (pfft, judge laughs, dismisses the case, and asks the cop why he's wasting his time with such a ridiculous case) and, "I observed the suspect trespassing. When I attempted to question him, he became aggressive and hostile" (judge thinks you're 'just another troublemaker' and applauds cop's work keeping the streets safe).

Two other things I've noticed:

- Cops really have a lot of discretion. Small bag of weed in your pocket? (As an example.) It could get you taken to jail immediately. Possession of a controlled substance. (And if you're in a car, at least here, that's another charge. And when they put it in their report, the RMV here in Massachusetts will pull your license.) Happens all the time, and it's "by the book." Or, instead of confiscating your weed and arresting you, the cop could ask you to dump it down the sewer, give you a stern warning, and tell you to have a good evening. No arrest, no charges. The difference? One guy was a jerk to the officer, the other apologized, confessed, and was nice. (For what it's worth, this isn't a "lazy cop" thing, but something a lieutenant mentioned that he knows his whole force does, and something he condones. They really have no need to arrest people for every minor, arrestable fraction.)

- Technically speaking, you could have been arrested for trespassing. Even if you had been trespassing per se (which I'm not terribly sure you were), the chances of you actually being convicted of anything are roughly 0%. And I don't mean to paint the cops as pricks who arrest people on false pretenses. (It's surely very rare, and would be a lot of paperwork for them.) Where you normally see this is DUI—if a cop stops someone who he knows is drunk, wasn't doing such a great job driving, but who refuses the Breathalyzer and does alright in the field sobriety test, he might arrest them for DUI anyway. One told me that he made a handful of DUI arrests that he knew the judge would throw out, but he really didn't care: he got a drunk off the road for the night, and there really wasn't a lot of recourse against him: there was plenty of evidence / probable cause indicating that the person was drunk, just not enough for the judge.

Again, I don't want to give the impression that most cops are even bigger assholes than the one you encountered seems to be. I'd say about 90% are really nice people. But given their line of work, they make snap judgments about whether people are "good" or "bad"—were you and your friend two "good kids" waiting to go play basketball or volunteer at the soup kitchen, or were you two "bad kids" waiting for someone to pass by so you could mug them? When he first approaches, he really has no clue. And when people start off by giving attitude as I see people proposing (not just here, but everywhere, all the time), it's only going to cause you to be labeled "bad" pretty quickly, confirming that his suspicion when stopping to talk to you was justified and that he needs to investigate further. Instead of "standing up for your rights" as people seem quick to do with cops, it's always seemed to me to be far more effective to try to get him to lump you in as one of the "good ones," whether it means being yourself or acting. Go along as if you love cops (but without being over-the-top and seeming like it's all an act...) and are humiliated that you were trespassing, even though the truth is that the cop's being a jerk and you weren't trespassing. And then he's going to have nothing to do but realize that you're not doing anything wrong in the first place and go find something else to do.

Oh, IANAL, just one who finds the field fascinating. And IANALEO, I just spent a few years reporting on them for the school paper, and got to talk candidly with many officers, both campus PD and local PD, over time.
posted by fogster at 7:53 AM on August 18, 2008

They really have no need to arrest people for every minor, arrestable fraction.

That's why you should always deal in irrational numbers, or at least decimals.

Make that "every minor infraction...

posted by fogster at 8:00 AM on August 18, 2008

Not that I think this is a cool situation, but technically you might have been on private property. Often the property owner owns all or a portion of the adjacent sidewalk. Where public right-of-way stops and the private parcel begins is something that we'd need to know more about the individual city (or see a parcel map) to know. And ditto that if you're within a planned development or campus, the streets aren't technically public either.
posted by salvia at 8:09 AM on August 18, 2008

"attractive nuisance" and "summary judgment" have nothing to do with this.
posted by JimN2TAW at 8:11 AM on August 18, 2008

Response by poster: Maybe my write up wasn't as clear as I could make it:
-This sidewalk was definitely, 100% public property.
-The cop was definitely, 100% a real police officer
-I am 26 years old
-This was not in a dark, out the way place - we were in the middle of a busy campus and there were at least 8 other people sitting on or leaning against the wall. For whatever reason me and my friend were singled out.
posted by youthenrage at 8:53 AM on August 18, 2008

A sidewalk is usually not so much "public property" as it is a defined easement for a specific purpose... if that makes any difference.
posted by HuronBob at 9:19 AM on August 18, 2008

Cops, in probably all jurisdictions, have the discretion to ask you to move on if it seems like you're loitering, in an dangerous area, or there is the potential for criminal activity to take place.

Whether you were trespassing or not isn't the issue although the cop probably used that term as a catch all for, "I don't like you and your friend's punk faces, and I don't appreciate you slobs driving down the property value of my beat with your slovenly ways."

Trespassing has specific legal meanings in a court of law. Could you have been arrested and convicted of trespassing? Hell no. Could you have been arrested, dumped in a holding cell, and left to rot over the weekend until the magistrate arraigned you on Monday morning, throwing out all charges? Oh yes. It happens every day.

If you want to be a hard ass about it, you don't have to show id or "state your business" during a so-called "Terry-Stop" - but you do reasonably have to state your name and address. Anything beyond this and the cop is abusing his power. Not that you can do anything about that. (Of course this doesn't apply if you're driving.)

Generally when a cop stops you, you should be respectful, friendly, and helpful if possible. But don't surrender your rights and submit to questioning. State your name, and where you live, then ask if you can move on. The cop won't directly answer that question, so continue to ask it until he get's the idea... or arrests you.

More information on what happens when you're stopped by the cops here.
posted by wfrgms at 10:14 AM on August 18, 2008

This sidewalk was definitely, 100% public property.

How do you know that? Did you check the plat maps?

I used to read my undergraduate university's police blotter regularly. Criminal trespass was their bread and butter. The majority of the entries in the blotter were criminal trespass warnings, where the subject was doing something the university or cop didn't like but which wasn't illegal or the illegality would have been difficult to prove. Occasionally you would see a criminal trespass arrest for someone who was dumb enough to come back.

Stay away from all the property of the university and the university system, even the bits you think are "definitely, 100% public property." If you really want to go back there, write a letter to the university police chief asking how they can ban you from a public street. They will probably write back telling you it is not really a public street, it just looks like one. You can get a lawyer and fight that in court if you want. Or you can just move on.
posted by grouse at 10:22 AM on August 18, 2008

Best answer: I'm not a lawyer, but a law graduate waiting for bar exam results. I'm not your lawyer.

Ignore what most people have been telling you in this thread--especially "fogster." As JimN2TAW has pointed out, albeit obliquely, "summary judgment" is a stage of a federal civil case. It is irrelevant to criminal cases, especially state criminal cases. Many states have proceedings similar to summary judgment in their civil procedure rules, but I'm not going to go into any of that since, well, it's completely irrelevant to your question.

Moreover, "attractive nuisance" has nothing to do with this. It's a state law tort doctrine applied to children injured in certain circumstances. Again, that's civil, not criminal law.

The only way to get a criminal case dismissed before trial (apart from convincing the prosecutor to voluntarily dismiss it) is by filing a motion to quash (or dismiss) the indictment (or information). (An indictment or information is a legal document formally charging you with a crime. I mention the information because, in some states, its the charging instrument used for misdemeanors. I can't speak to Virginia practice, however.) The names for this motion differ depending on the state, but essentially you're alleging some defect in the form of the indictment or information (it doesn't name you, doesn't list the elements of the crime, etc.) or substance of the indictment or information (i.e. the crime you've been charged with isn't actually a crime).

So, had you been formally charged with trespassing (this probably would have occurred after the cop issued you a summons and you appeared before a magistrate and asked to contest the charges), your lawyer would have filed this type of motion. Sorry to be so general, but states vary widely in their criminal procedure, and I'm not about to bone up on the criminal procedure of a state where I'm never going to practice.

The applicable criminal trespass statute is Va. Code Ann. § 18.2-119, which "lockestockbarrel" has reprinted above. A quick read through the Westlaw annotated cases reveals that to be convicted of criminal trespass in Virginia, your trespass has to be "willful." That means that you must have known you were trespassing; a good faith belief that you were not trespassing is a defense. See, e.g., Jones v. Commonwealth, 443 S.E.2d 189 (Va. Ct. App. 1994). If the facts are as they say they are--this was a public street, there were no "no trespassing" signs, and so forth, you'd have a defense. This isn't to say, however, that the prosecution couldn't contest these facts at trial--that there were signs and that the street wasn't public. So this argument alone probably wouldn't result in dismissal.

You're more interested in knowing whether leaning on a building can constitute criminal trespass in Virginia. That, unfortunately, I can't tell you with certainty because, well, no Virginia cases answer that question. It's just never come up. The prosecution would probably argue that leaning on a building falls within the words of the statute ("If any person without authority of law goes upon . . . buildings . . . of another, or any portion or area thereof, after having been forbidden to do so . . . ."). The defense would probably argue that the statute shouldn't be read this way because civil trespass to land has always required entry onto another's land (leaning on a wall from a public sidewalk is insufficient) and the phrase "goes upon" more likely refers to entering the building itself. The prosecutor would probably respond that the statute can, and has, gone beyond the elements of civil trespass. Both sides would look to see if other states had similar criminal trespass statutes and see how they'd been interpreted and would look to the legislative history, if any, of this statute. As you might imagine, all this research wouldn't really be worth it for a misdemeanor case and a reasonable prosecutor, faced with a defense lawyer willing to contest all of this, would probably just voluntarily dismiss the case. To come up with the "likely" answer would require far, far more research than I care to do--especially since you were never actually charged with a crime.
posted by saslett at 11:24 AM on August 18, 2008 [1 favorite]

Oh, and ditto what others have said about checking the plat maps. If you weren't actually on a public street, the whole "leaning" discussion is moot and the only issue is wifullness.
posted by saslett at 11:39 AM on August 18, 2008

"Ignore what most people have been telling you in this thread--especially "fogster." As JimN2TAW has pointed out, albeit obliquely, "summary judgment" is a stage of a federal civil case. It is irrelevant to criminal cases, especially state criminal cases."

Ouch. You're right, though: discussing law while sleep-deprived is perhaps not the best idea for me, as my ramblings about summary judgment (and being arrested for "illegal fractions") probably indicated. The point I was trying, albeit failing, to make is that the cop was most likely bluffing/BSing.

However, having once made a fool of myself in this thread, I'm going to hope I don't go for seconds with this next bit:

This sidewalk was definitely, 100% public property... we were in the middle of a busy campus

I couldn't comment too authoritatively on whether being a public university makes any difference (though my hunch is that it does not), but the fact that you were "in the middle of a busy campus" makes it seem fairly likely that you were on private property.
posted by fogster at 12:41 PM on August 18, 2008

Though I should amend my comment: it makes it seem fairly likely that you were on private property, but that doesn't automatically constitute trespass per the law lockestockbarrel posted earlier in the thread. (Though now you have been 'forbidden to do so.')
posted by fogster at 12:45 PM on August 18, 2008

Best answer: IAAL

"Trespassing" in the classical sense occurs when you "break the close" -- that is, when you pass over the border. It's trespass if you put your hand over the top of a fence, even if you don't touch anything, or if you shoot a rifle at a cat yowling on your neighbor's roof, and miss (the "Tasmanian Cat" case).

In your case, you were touching the wall but not going over it, so I don't think it's trespass. And it's a close call, since it is trespass if you glue an advertising poster to a wall.

However, if you defy a policeman, you may find that you "assaulted" him by hitting him over the nightstick with your head. The judge may throw it out, but until then, the law is what the policeman says it is.

Let it go. It's just a story of how you got hassled.
posted by KRS at 1:06 PM on August 18, 2008 [1 favorite]

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