Can you be issued a trespass warning on public property for no reason at all?

Question

Lets say you're in the library or park. Both owned by the public (city). An employee asks you to leave. You ask why and they respond with "Because I'm telling you to". You refuse, and the employee walks away and calls the Police. When the Police show up, they tell you have been asked to leave or you will be issued a trespass warning.

"Trespassed" is very common shorthand for the process of issuing someone a trespass warning telling them to stay off property. — bdb484, Mar 08 '23 at 20:24
@bdb484 I'd disgaree and corrected ungrammatical uses of the term in the post. Trespassed is the past tense of trespass. Trespassed is not commonly used to describe the issuance of a ticket for trespassing. At a minimum using the word "trespassed" in this sense is highly colloquial. — ohwilleke, Mar 08 '23 at 20:43
@ohwilleke it could still be colloquial, but I do hear it fairly often on a police radio scanner. — Someone, Mar 08 '23 at 23:06
Perhaps it's a regionalism? In my experience, it's quite common in the Midwest and on the East Coast. — bdb484, Mar 09 '23 at 01:02
@ohwilleke "Trespassed" to mean "removed" is quite familiar to me, but probably colloquial. But I think your 1-to-1 replacement of "trespassed" for "trespassing" has made the whole tense of this question really confusing. (I grew up on the West Coast) — Azor Ahai -him-, Mar 09 '23 at 04:24
Because you can't "be trespassing," that's what trespassing is, you can't do it. — Azor Ahai -him-, Mar 09 '23 at 04:24
The edit has made this question completely nonsensical. Can you trespass on public property for no reason? Yes, of course. Break into a library with no intention and you’re trespassing for no reason. That’s an entirely nonsensical question to ask, and not what was actually asked at all. @ohwilleke In this case, the instances of trespassed you changed are not the past tense of trespass, but the past participle. The original wording used passive constructions, which you changed to active constructions, thereby completely changing the meaning of the question. — Janus Bahs Jacquet, Mar 09 '23 at 11:37
Yes, "to be trespassed" doesn't mean "to be trespassing." It means "to be issued a warning that you will be treated as a trespasser if you return." — bdb484, Mar 09 '23 at 13:48
"Because I'm telling you to" is invariably the last reason given, after reasonable reasons have been given and unreasonably argued with/ignored. As such, Occam's Razor applies: the "for no reason at all" claim is probably bogus. — Harper - Reinstate Monica, Mar 09 '23 at 19:37
The original intent of the question is trying to utilize a public service (like a park or library) and you encounter an employee either having a bad day, on a power trip or they just don't like you and want you to leave. You haven't done anything wrong so you question their authority and reason for the ejection from said location. Given that is a shared public space, can you be denied access to it even thou you haven't cause any disruptions and still within normal operating hours. — Digital fire, Mar 09 '23 at 20:27
If someone trespasses you when you are not trespassing, the Lord's prayer instructs you to forgive them for trespassing against you. Amusing. — kaya3, Mar 11 '23 at 22:58

ohwilleke · Accepted Answer · 2023-03-10T02:05:59.300

Can you be trespassing on public property for no reason at all?

Yes.

When the government owns property, it can direct you to leave for any reason (even a legally invalid reason), and you are trespassing if you don't leave.

When you are present on land you don't own with permission, but without a lease, you have a "license" to be there which is a contract-like right and is not a property right.

A license doesn't give you the right to stay on the property over the objections of the owner or an agent of the owner.

You might be able to receive money damages for an improper termination of your license to be present at the property (e.g. if you are told for no reason to leave a movie after paying for a ticket), but you don't have the right to simply stay there. If you stay there over the objections of the owner or the owner's agent, you are trespassing.

The law applicable to government property owners and private property owners is basically the same in this regard.

Realistically, on government property, furthermore, the standard by which the government employee may legally terminate your license to be there and exclude you from the property is low.

Basically, it must merely not violate any constitutional right you may have, and you do not have a constitutional right to be present on government owned property, except in a quite narrow subset of cases (e.g. the "town square").

More exactly, you do not have a right to be on government property per se, but you can't be excluded from it for a constitutionally impermissible reason. The government gets to decide what parts of property it owns are available to the general public and for what content-neutral purposes.

Thus, the right to be present on government owned "public" property (which doesn't include private areas of government owned property) can be subjected to reasonable and content-neutral time, place, and manner restrictions.

For example, a town could legally decide that the town square is closed from midnight to eight a.m. every day.

The quoted material from the case Chicago v. Morales, 527 U.S. 41, 53-54 (1999) cited in the answer by bdb484 is narrower than a plain reading out of context would suggest. In that quotation, the term "public place" is being used in a sense much more restrictive than in the broader sense of property that is merely government owned. It is referring to places where the government has expressly or implicitly allowed members of the general public to be present on land that it owns (as opposed, for example, to a government office area of a building, or a maintenance facility in a government owned park, or a conservation area in a government owned park). This narrow sense of the word resolves what would otherwise seem to be a contradiction in the law.

But, the government has the authority to make something that once was a public place into a non-public place going forward.

For example, historically, the Civic Center park in front of the capitol in Denver, Colorado has been a public place. But, the government can and did close it off to the public for many months for maintenance and out of public health concerns when heavy use of it by homeless people and drug dealers caused the premises to be seriously damaged and created a public health risk from it being used to dispose of dirty, used, injection-drug syringes, and for people to defecate.

A Hypothetical

Suppose that Chris is the sole librarian in one of the towns of College Corner, which is on the Ohio-Indiana border, which are in different time zones. In that capacity, Chris has the authority to set library policies including the hours of the library and the rules for its use without the approval of anyone else.

Chris has a hot date at 5:30 p.m. But, at lunch time, Chris learned that the hot date was at 5:30 p.m. in Ohio and not an hour later at 5:30 p.m. in Indiana, but the library's official closing time is 5 p.m. in Indiana, because Ohio was observing daylight savings time, but Indian was not, at the time when this happened.

Chris, as the sole government official in charge of the library, decides to close the library before its posted closing time at 4:00 p.m. Indiana time (5 p.m. Ohio time) in order to be able to make it to the hot date.

Chris quietly asks everyone left in the library to leave at 4 p.m. Indiana time, and everyone but you does. But you, who are homeless, really want to stay the extra hour before getting out in the cold and finding a bridge to sleep under, so you refuse to leave saying that the library is still open until 5 p.m. Indiana time, as stated in its posted hours.

Chris orders you to leave and warns you that he is calling the police to remove you if you don't do so voluntarily. The police arrive and restate the complaint of Chris. The police arrest you for trespassing and you are charged with this crime in the appropriate court by the appropriate prosecuting attorney.

You had done nothing wrong whatsoever prior to being asked to leave and refusing to do so. But, Chris has not violated your constitutional rights by ordering you removed for some unconstitutional reason. Chris then goes on the hot date; it is love at first sight, and Chris gets married the next week. As an apology for putting you out for the sole convenience of Chris, Chris invites you to the wedding.

Do you have a valid defense to the criminal trespassing charge on the grounds that the librarian's actions were unconstitutional? No. You might have a "good faith claim of right" defense, however, to the criminal charges.

Do you have a valid claim for money damages for a violation of your constitutional rights? No.

Indeed, ordering you removed for "no reason" that has anything to do with your conduct, as in this case, is probably more likely to be legal and constitutional, than having you removed for "some reason" other than just "because I the librarian say so" that doesn't involve wrongdoing on your part.

A Variation In The Hypothetical

If instead, your were being ordered to leave the library because you were wearing an National Rifle Association cap (and the library didn't prohibit wearing caps), this affirmative reason, which is contrary to the First Amendment freedom of expression, would be a violation of your constitutional rights, which would definitely be a basis for a civil lawsuit against the librarian and police involved in you being arrested.

I don't know the details of constitutional defenses in criminal law well enough to know if the violation of your constitutional rights would be a valid defense to the criminal trespassing charge (or a failure to obey a police officer's order to leave charge) resulting from you failing to leave in that circumstance, and I can see legitimate arguments both ways. This is also a situation where the non-constitutional claim of right defense to a trespassing charge would be a strong one.

I really wish you would add a TL;DR: You can protest inside of a library... but the librarian is still gonna have you removed because you won't "shush"! — hszmv, Mar 08 '23 at 20:38
@hszmv This is a rare post when a TL;DR doesn't work well because the concept is quite subtle. The example you give in your comment, however, is certainly correct. — ohwilleke, Mar 08 '23 at 20:41
Almost all of Indiana, including all of the portions adjacent to Ohio, is in the eastern time zone: https://en.wikipedia.org/wiki/Eastern_Time_Zone — phoog, Mar 08 '23 at 22:00
@phoog There was a time difference between the different sides of the border when I was growing up which made school schedules complicated because the town school which is a joint venture between Ohio and Indiana is in one time zone on one side of the border and another on the other side of the border (at least much of the year). It may have been a function of one side observing day light savings time and the other not doing so. — ohwilleke, Mar 08 '23 at 22:07
@ohwilleke until 2006, the ET parts of Indiana did not observe daylight saving time, so there was only a time difference from the late spring to the early fall. I went to grad school in Indiana and at some point before school started I called the department office and was surprised to find it closed. The next day, the secretary scolded me because she had included on the information sheet "Bloomington is on Eastern Standard Time" -- somehow I was supposed to infer "year round" from that. Anyway, your hypothetical works if it happens during daylight saving in 2005 or earlier. — phoog, Mar 08 '23 at 22:30
@phoog That was my intend and for the hypothetical to work one only has to assume that it is true even if it isn't. The idea was to have a reason that was purely personal to the government official which didn't relate to anything related to the citizen asked to leave or proper governmental functioning and not to a very obviously work comes second place excuse for the employee (like a health emergency of the librarian). — ohwilleke, Mar 08 '23 at 22:38
I think this answer is sort of fighting the hypothetical. OP is asking about being booted from a public library for no reason at all, but you're answering with a scenario where he is being booted from a public library because it is closed, which I think most people would agree is a pretty solid reason for telling people to leave the library. — bdb484, Mar 09 '23 at 01:05
How does one distinguish no reason and undisclosed (and potentially unconstitutional) reason? — Vladimir F Героям слава, Mar 09 '23 at 09:15
With a deposition. How does the means of distinguishing between the two affect the answer? — bdb484, Mar 09 '23 at 13:44
I have my doubt that OP's statement of "no reason given" is entirely forthcoming, but my ability to get the Librarian's side of the story is non-existent, so I can't back up my doubts. — hszmv, Mar 09 '23 at 14:23
@hszmv In a truly imaginary hypothetical, we can take anything said as true even if real world scenarios rarely involve such facts, because part of the role of a hypothetical is to clarify what the rules are, not to resolve a particular case justly. — ohwilleke, Mar 10 '23 at 01:24
Where can I go if the government tells me to leave their land and I don't own or rent my own land? Doesn't the government own all land that is not privately owned? That may not be entirely hypothetical; I seem to recall that some US cities force homeless people to go to other cities and vice-versa. — gerrit, Mar 10 '23 at 08:04
@gerrit The problem is more how cities deal with cooking the books when they report "homeless numbers" kick the bums into the burbs and claim "Not our problem now."
As to the government owning all non-privately owned land, unused public land as well as streets and other similar structures are typically referred to as "the commons" and while maintained by government would not be places of government business and thus generally available for public use 24/7. — hszmv, Mar 10 '23 at 12:04
The government still regulates how "the commons" can be used and has wide authority to, for example, shut down public roads temporarily or permanently, regulate parking, regulate 'urban camping", etc. "Where can I go if the government tells me to leave their land and I don't own or rent my own land?" The law, by and large, doesn't provide you with a remedy. There is no right in U.S. law to have a place to live or just 'be" if you can't afford one. — ohwilleke, Mar 10 '23 at 14:04
You can definitely complain to Chris's bosses who may not be happy to hear that the library was closed an hour earlier so that Chris can go on a date. What exactly they want to do is up to them, and there is the question what they can do depending on the location. Worst case for Chris may be getting fired if he has done this thing before and was told not to. But no legal consequences. — gnasher729, Mar 10 '23 at 14:41
@gnasher729 Indeed. That is a very likely result, unless Chris is truly beloved in the town because he is so good at his job or is a nice person or is a former celebrity who is loved for that reason. — ohwilleke, Mar 10 '23 at 14:47

score 10 · Answer 2 · answered Mar 08 '23 at 20:35

The mistake here is that the library is publicly owned/funded but is a place of government business and as such, is allowed to implement property rights similar to that of a private business and maybe allowed to press trespass charges if a customer is asked to leave and refuses to do so. Even certain public locations (i.e. a public park) may have hours where the public is not permitted on the property (lots of parks are "dawn to dusk" hours and while not enforced, it can be considered trespass if you are on park property after operational hours.).

This is especially true if the behavior of the person being asked to leave is such that there is a disruption to the conduct of the government property's business or service and the delivery of that service to the public. Libraries, public and privately owned, are famous for employees that like to remind you to "shush" and suspending borrowing services if you have overdue books still checked out OR outstanding fines for those late returns or lost material. Similarly they may also direct a citizen to leave if they engaged in behavior that is a risk to the safety of patrons on a whole (almost every library I lived by had signs notifying people that skateboarding was not allowed on the outdoor property at any time. And I imagine that asking a patron to leave if they are acting in a manner that is harassing to an employee.).

Just because a place is owned and operated by government and is opened to the public for the purposes of conducting business, it does not negate the right of the government to remove those who would be disruptive to the intended business of the property.

That said, typically protest is allowed to the effect that it does not unduly hinder access to the facility during normal business hours. One may hold signs on a sidewalk or public easement in front of a library, DMV, or post office, so long as that protest respects the business being conducted inside of said facility. The last thing anyone wants to do is go to the DMV let alone fight through a crowd of protesters shouting "Down with Speed Cameras" who won't let you in to take care of their change of address.

score 2 · Answer 3 · answered Apr 06 '23 at 15:57

"Disruption" in itself is not a criminal act. I prefer the question framed without attachment(s). Can a public official (postal employee, school superintendent, Social Security office guard) ask, demand a person to leave a publicly accessible (non restricted access - lobby, foyer, corridor)? Sure, they can ask, demand you hop on one foot and remove your hat too. But, is that a lawful notice of trespass? Well, now the police are called and the reporting party says whatever they choose in attempt to convince the police to remove the offending party from public property. Is simple notice by the reporting party of (I don't want them here), sufficient for a police officer to generate a criminal trespass warning? What does the law say about revoking an implied license? Must it have elements of the minimal standard usually invoked by police "reasonable suspicion"? Or, is it more comprehensive to be in honor of the 4th amendment and include articulable facts and evidence that support "probable cause".

What if the reporting party drafts a document, (You are permanently banned from gaining access to this public building, if you return you will be arrested for defiant trespass because you caused a disturbance!!!). This document is sent via certified mail and the offending party signed that they received the document.

Now, this document didn't identify the "crime" related to a disturbance, was not limited in duration, provided no path to appeal, and was a clear threat of violence (arrest is a physical act against ones free will). This smells of a 14th amendment violation.

But, the reporting party doesn't have the lawful power of arrest, they must defer that to law enforcement. Now the offending party receives this document, knows that the letter is not an official "criminal trespass warning" supported by an affidavit or sworn statement of probable cause. The offending party returns to the property. The reporting party calls the police (Hey, I sent a trespass notice and this guy has returned, you need to arrest them for defiant trespass after warning, come quick we are afraid.)

The police respond, are presented this document, shackle the offender, transport (kidnap) the offender, book and charge with defiant trespass after warning. But here is the kicker, the police have no record of generating a criminal trespass warning to the offender and are at risk of dereliction of duty in conducting a reasonable investigation and an unlawful arrest under 42 USC 1983.

Now, instead of adding elements to this scenario, state the law that authorizes an officer or public servant the "lawful" authority to remove any private citizen with an implied license to gain access to public property and public services. (Please avoid feelings or reference to policy)

Your answer could be improved with additional supporting information. Please [edit] to add further details, such as citations or documentation, so that others can confirm that your answer is correct. You can find more information on how to write good answers in the help center. — Community, Apr 06 '23 at 16:25

score 0 · Answer 4 · edited Mar 08 '23 at 22:05

No.

Your right to be present in public places is generally protected by the Due Process Clause of the Fourteenth Amendment:

We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. ... Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is "a part of our heritage."

Chicago v. Morales, 527 U.S. 41, 53-54 (1999).

The police cannot ban you from a public place without providing advance notice of the contact that will result in a ban, and after they do ban you they are required to give you an opportunity to contest that decision.

@Trish "The park is closed" is a pretty classic case of ordering someone to leave for a reason. OP is asking about the opposite scenario. — bdb484, Mar 09 '23 at 01:06

Can you be issued a trespass warning on public property for no reason at all?

4 Answers4