Trespass and Public Buildings

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A person commits first-degree trespass when he or she “without authorization . . . enters or remains . . . in a building of another.” G.S. 14-159.12(a). But aren’t members of the public “authoriz[ed]” to enter public buildings? And given that public buildings belong to all of us, do they even count as buildings “of another”? In other words, is it possible to commit a trespass in a public building?

Public buildings aren’t always open to the public. For example, you can’t walk into a public kindergarten class in the middle of the day just to assess the quality of instruction. You can’t amble up to the Governor’s Mansion at 2:00 a.m. on a Tuesday and let yourself in. And you can’t conduct your own inspection of the state’s correctional facilities whenever you choose. You’re not “authoriz[ed]” to do those things, because “[i]t is not the case that all property owned by the government is ‘open to the public.’ Certain areas of publicly-owned buildings may be restricted from public use by a locked door or a front desk, much like the common areas of privately-owned buildings.” People v. Barnes, 41 N.E.3d 336 (N.Y. Ct. App. 2015) (affirming a trespass conviction based on a defendant’s presence in the lobby of a public housing building). See also Wilson v. State, 504 S.W.3d 337 (Tex. Ct. App. 2016) (observing that “governmental entities have the same rights as private property owners to control their properties, so long as the entity’s policies are not employed as a subterfuge for illegal discrimination”).

Public buildings don’t belong to individual members of the public. Just as public employees don’t work for any individual taxpayer (no matter how often a taxpayer tells an employee “I pay your salary”), public buildings don’t belong to any individual member of the public. Therefore, government buildings are property “of another” for purposes of the trespass laws. As one Texas court put it, “[i]n a case involving public grounds, the State satisfies the burden of the ‘of another’ element of the criminal-trespass statute by proving, beyond a reasonable doubt, that the complainant has a greater right of possession of the property than does the accused.” Wilson v. State, 504 S.W.3d 337 (Tex. Ct. App. 2016).

While closing public buildings to the public generally is not controversial, those in charge of public buildings should be cautious about banning specific individuals. Based on the above, it’s clear that a person may be charged with trespassing when he or she enters a public building that is closed to the public generally, either on a permanent basis (like a prison or a research facility) or at certain hours (like a government office building that closes overnight). See, e.g., United States v. Powell, 563 A.2d 1086 (D.C Ct. App. 1989) (defendants could properly be prosecuted for trespassing on property owned by a municipal transit authority when they refused to leave a metro station after hours).

Things get more complicated when someone in charge of a public building wants to ban a specific individual from the building while allowing other members of the public to access the building. For example, if a person appears in the office of a local tax collector and is disruptive or threatening, the tax collector may wish to bar the person from returning. This sort of circumstance raises all sorts of possible legal issues, some of which are outside my expertise. So, without any claim to completeness, the following ideas may be worth considering:

  • Have a good reason. There should be a good reason for banning the person, and everyone who is similarly situated should be treated the same way. Courts seek to “protect all citizens against capricious and arbitrary enforcement of the unlawful entry statutes by public officials so that an individual’s otherwise lawful presence on public property is not conditioned upon the mere whim of a public official.” Eric C. Surette, Burden of proving statutory elements of criminal trespass—Showing of trespass on public property, Am. Jur. Trespass 193.
  • Provide some opportunity for the person to be heard before being banned. There is at least some authority suggesting that banning a person without any opportunity to be heard about the ban implicates procedural due process. See Seum v. Osborne, 348 F.Supp.3d 316 (E.D. Ky 2018) (“The unequivocal and permanent ban imposed on [the plaintiff] was sufficiently individualized to trigger due process protections . . . [and to] demand pre-deprivation process.”).
  • Don’t ban based on expressive conduct. A ban should not be based on a person’s decision to engage in conduct protected by the First Amendment, such as advocating for a particular point of view. If the person is banned from a building for reasons unrelated to their expressive conduct, they may be charged with trespassing when they re-enter the building, even if they re-enter for the purpose of engaging in expressive conduct. See Pentico v. State, 360 P.3d 359 (Idaho Ct. App. 2015) (arresting the defendant for trespass did not violate the First Amendment; the defendant was prohibited from being in a certain building that was being used temporarily to house the governor’s offices; when he entered that area anyway, he was arrested; he was arrested because of his unauthorized presence, not because of any expressive activity in which he hoped to engage). For additional discussion of some of the First Amendment issues that arise in connection with regulating access to and conduct in courthouses in particular, see this paper by former School of Government faculty member Michael Crowell.
  • Provide a means to conduct essential business. Banning a person from a building that houses essential government functions may be especially challenging. People in control of such buildings may wish to consider less restrictive alternatives to banning a disruptive person, such as requiring the person to be escorted while in the building. See generally Moses v. Oldham, 2016 WL 11249103 (W.D. Tenn. Oct. 17, 2016) (discussing person required to be escorted while in county buildings).

If anyone has additional thoughts or suggestions regarding prohibiting individuals from entering public buildings, please let me know or post a comment.

12 comments on “Trespass and Public Buildings

  1. What about schools? We have a situation where one parent has been banned from the school where their child attends due to threatening and disruptive (abusive language/cursing at staff). The other parent is able to come onto school property.

  2. Do these buildings mentioned in the statute include department stores or small businesses when an individual enters the business and refuses to leave or is previously banned and comes back inside the business?

  3. First Amendment Auditors, people who routinely film public buildings and public areas within those buildings to see if their rights are respected, are commonly told that they cannot film and are commonly ” trespassed ” by local police if they refuse to stop filming. No statutes are ever given as justification for the refusal to allow filming and arrests are common for ” disorderly conduct ” if a photographer insists on having their rights respected. Banning a citizen from a public building limits their ability to access offices they may need and is or should be patently illegal. Many government workers are under the false assumption that it is illegal to record even public areas despite the fact that no such statutes exist. Expect more and more challenges to these blatant violations of rights in the future and lawsuits to remedy the deprivation of rights in public buildings. If a citizen, with or without a camera, is in a place where they have a legal right to be they can film anything they can see. Any interference with that is a violation of civil rights and should be addressed in a court.

    • First Amendment auditors have no constitutional right to film inside government buildings if their conduct interferes with the transaction of business.

      First Def. Legal Aid v. City of Chicago, 319 F.3d 967, 968 (7th Cir. 2003)
      (the “Constitution does not create . . . a right of access to the inside of
      governmental buildings”)

      Huminski v. Corsones, 396 F.3d 53, 90 (2nd Cir. 2005) (“We are
      particularly reluctant to conclude that government property is a public
      forum ‘where the principal function of the property would be disrupted
      by expressive activity.’”)

      • The fact is that in most all incidents recorded, the mere presence of a camera causes the employees to claim ” interference with business ” even though the auditor has done nothing but quietly film public employees in the course of their duties. Many times police called to remove photographers ( just because the employees ” feel uncomfortable ” parrot the phony claim that the photographer is ” causing ” a disturbance because the employees are not doing their jobs but instead are caught up in objecting to this lawful activity. Public areas are to be open to all, with cameras and without. Private or restricted areas of course are exempt.

        I can envision a day in which the police will be too concerned about their lives to worry about arresting lawful photographers because the snowflake employees are uncaring about rights.

  4. I was banned from a fast food business but was not took to court so am I banned.. I did nothing wrong it’s all on video. I just wanted my money back.. I didn’t get my food or money and got banned .. after being told( I’m a costumer they see every day they never have a problem with me).ON CAMERA . but publicly humiliated me and had me banned..

  5. What about denying access during business hours due to patron illness? Would it be legal to post a sign saying anyone exhibiting certain symptoms will be denied access to service?

    • If the property is private then yes, generally the owner can deny service to anyone they please. Public property cannot deny someone access to a service based on any exhibition, however it changes in national emergency, because it imposes certain procedural formalities when invoking such powers.

  6. I was tresspassed from a local abc store for not wear a mask. I stated i was exempt under the governor’s mandate. the employee admitted he did not read the mandate. Can i be tresspassed from a public property by an governmen t employee without cause.

    • You cannot be turned away by any business due to medical reasons fit no wearing a mask period. It is stated right in the Order. The business has to comply with that and make special accommodations for you to shop freely. Even if you do not have a medical condition, it is unconstitutional to force anything into anyone’s body. Another fact: “Mandates” are not “Law”! The more you educate yourself the more power you have! Get a copy of the Order from your State website and bring it with you everywhere you go and use it to show these idiots that you are not going to tolerate it! Educate your friends & family in this as well… Best of luck…. stay strong!

  7. Recently an individual has moved into our small town. He claims to be blind and says he requires a cellphone and a chest-mounted GoPro. He started with the police and has launched an all-out attack on them. By the way, he is never arrested. He calls it “kidnapped”. He has a for-profit YouTube channel and travels all of the country pulling this same act. He obtains video from the police or government security videos and then edits them gives them a clickbait title. He has been banned from several businesses because he enters the stores to video customers and employees. He complains about people not wearing a mask but refuses to wear one. His catchphrase is you can stop me from entering any gov building. Because I am blind. Vet. He goes to the city hall the police department and is constantly requesting what he considers public records. He has done this from Washington to NC to Texas last week. He encourages his followers to call the town’s officials the Police Departments repeatedly. Question is the privately owned business can ban him from the business. It’s their right to refuse service. What can the Government buildings do? Can they trespass him after asking him to repeatedly to leave.

    • If all he is doing is filming and requesting public records then he should not be denied services and trespassed no matter how many times some uninformed lackey tells him to leave. If you are banned from a building containing the tax collectors office, you have a case to withhold paying the taxes. Most of these cases involve bullying and threats by a cop called in but when an arrest takes place it is usually an illegal arrest and should be the focus of a lawsuit. Just because conduct is unusual or bothersome does not mean it is illegal. What we need are more lawsuits.