Trespass

Rusty · Dec 20, 2009

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I am not advocating refusing to leave a business when asked to leave by the owenr for open carrying, but I was reading CPC 626.1

(a)Any person who intentionally interferes with any lawful business or occupation carried on by the owner or agent of a business establishment open to the public, by obstructing or intimidating those attempting to carry on business, or their customers, and who refuses to leave the premises of the business establishment after being requested to leave by the owner or the owner's agent, or by a peace officer acting at the request of the owner or owner's agent, is guilty of a misdemeanor, punishable by imprisonment in a county jail for up to 90 days, or by a fine of up to four hundred dollars ($400), or by both that imprisonment and fine.

(b)Any person who intentionally interferes with any lawful business carried on by the employees of a public agency open to the public, by obstructing or intimidating those attempting to carry on business, or those persons there to transact business with the public agency, and who refuses to leave the premises of the public agency after being requested to leave by the office manager or a supervisor of the public agency, or by a peace officer acting at the request of the office manager or a supervisor of the public agency, is guilty of a misdemeanor, punishable by imprisonment in a county jail for up to 90 days, or by a fine of up to four hundred dollars ($400), or by both that imprisonment and fine.

(c)This section shall not apply to any of the following persons:

(1)Any person engaged in lawful labor union activities that are permitted to be carried out on the property by state or federal law.

(2)Any person on the premises who is engaging in activities protected by the California Constitution or the United States Constitution.

Heller determined that the right to bear arms is an individual right protected by the 2nd amendment to the United States Constitution.

So am I incorrect as reading this as, if you are bearing arms (as per your 2nd amendment right) you cant be trespassed for that?

I wonder this because I am pretty sure if I walk into a store and hand out flyers to a competitors store, they can ask me to leave, and I will get trespassed if I do not, but I am exercising my 1st amendment rights in that case?

ConditionThree · Dec 20, 2009

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PRUNEYARD SHOPPING CENTER v. ROBINS, 447 U.S. 74 (1980) http://www.firstamendmentcenter.org/news.aspx?id=19486

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=447&invol=74
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Held:

1. This case is properly before this Court as an appeal under 28 U.S.C. 1257 (2). A state constitutional provision is a "statute" within the meaning of 1257 (2), and in deciding that the State Constitution gave appellees the right to solicit signatures on appellants' property, the California Supreme Court rejected appellants' claim that recognition of such a right violated their "right to exclude others," a fundamental component of their federally protected property rights. Pp. 79-80.

2. State constitutional provisions, as construed to permit individuals reasonably to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, do not violate the shopping center owner's property rights under the Fifth and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments. Pp. 80-88.

"`It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations (see Diamond [v. Bland, 3 Cal. 3d 653, 665, 477 P.2d 733, 741 (1970)]) would not markedly dilute defendant's property rights.' ([Diamond v. Bland, 11 Cal. 3d 331, 345, 521 P.2d 460, 470 (1974)] (dis. opn. of Mosk, J.).)" Id., at 910-911, 592 P.2d, at 347-348.

While the first amendment is recognized as almost inviolate, the second has not been incorporated and the California constitution has no such provision. It could be argued however, that the carriage of exposed firearms in such a venue is a first amendment exersize, provided that the activists are orderly and otherwise lawful.

And as the case above explains; this would be a venue considerably larger than a single business, but of a larger market place which invites the public to enjoy their ammenities.

Again, this is a situation where the question of 'whether or not we can' is being advanced, before we can explore the activity wholly under California's 2nd amendment hostile jurisdiction.

In short, I believe a small business owner can trespass you for whatever chaps their hide. A privately owned mall or large marketplace could trespass you for actions that inhibits, interferesor disrupts normal business. But they couldnt trespass you for speech or any other lawful behavior.

The argument however is moot, until we have a better affirmation of the 2nd.

yelohamr · Dec 20, 2009

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If a business asks or tells you to leave, do it.It's not worth the trouble or your freedom to argue. If they call the police to remove you, it won't end well for you. If you are told not to return and later on you do so and the police were involved in the 1st event, you WILL, in all likelyhood, be arrested for trespassing.

One recourse is call or email the business owner, corporate office, etc. and let them know what happened when you were excercising your Constituional Right and let them know the website where you posted the information. Let them know that you and most of the people that read your post will no longer spend money in their establishment.

The AZ OC forum has a list of businesses not Do and Don't allow OC. This should be done in CA also. Hit them where it hurts the most...the cash register.

Rusty · Dec 20, 2009

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Yeah, as I stated:

I am not advocating refusing to leave a business when asked to leave by the owner

I just found that interesting.

ready on the left...ready on the right · Dec 20, 2009

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The constitution establishes the protection of our rights to prevent the government from violating those rights. The government cannot, is not supposed to, violate the right to free speech, or bearing arms or being unreasonably searched and etc. However, the constitution is not meant to protect you from another citizen attempting to violate these rights since they can not restrict these freedoms by imprisoning you.

The violation of our fundamental rights is not applicable to private citizens. This is particularly the case when that private citizen owns a business and other citizens voluntarily enter his/her establishment. In that case the business owner can make rules that violate the constitution, like prohibiting firearms, and it is not illegal.

Rusty · Dec 20, 2009

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I understand that principle.

But their arbitrary rules are not enforceable under the law.

If you break one of their rules, and they ask you to leave, and you do not, then you are trespassing.

That is the law that can be enforced.

Just as it is not illegal for them to have rules that may not be constitutional, it is not illegal for you to not follow those rules.

What is illegal is not leaving when they ask you to.

It seems that there is an exception in the trespass law stating that if you are doing something that is constitutionally protected, trespass does not apply.

ready on the left...ready on the right · Dec 20, 2009

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I get the impression you are looking at the bigger picture. It doesn't seem right that a person can make rules that restrict or prohibit your fundamental rights. But it is part of our freedom to make these types of rules within our own private property.

You can not be criminally prosecuted for breaking their rules, only for trespassing. A good thing to keep in mind is that in most cases a person can not be in violation of trespassing until that person has been asked to leave or is otherwise aware they are not welcomed on the property.

ready on the left...ready on the right · Dec 20, 2009

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Rusty wrot

It seems that there is an exception in the trespass law stating that if you are doing something that is constitutionally protected, trespass does not apply.

I'm sure you could find an attorney to argue the matter, but I'm confident the courts would allow people to make restrictive rules on their own property. The public area is what the courts will concern themselves with since the constitution is meant to be a set of rules for the government to follow.

Mike · Dec 20, 2009

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Rusty wrote:

Heller determined that the right to bear arms is an individual right protected by the 2nd amendment to the United States Constitution.

So am I incorrect as reading this as, if you are bearing arms (as per your 2nd amendment right) you cant be trespassed for that?

I wonder this because I am pretty sure if I walk into a store and hand out flyers to a competitors store, they can ask me to leave, and I will get trespassed if I do not, but I am exercising my 1st amendment rights in that case?

Constitutional rights apply to state action, not private action.

Rusty · Dec 20, 2009

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Being prosecuted for trespass would be a state action. Individuals cannot prosecute.

I am not trying to be a jerk or anything, I just find this type of stuff fascinating.

So, if I was walking around in a mall UOC, and a security guard comes up to me and says

"you have to leave the mall because it is against our rules for you to have a firearm in here."

I could say,

"There is nothing illegal about carrying an unloaded firearm"

And then don't leave.

What will the police charge me with when they show up?

Since I am exercising my constitutional right to bear arms, it does not seem like trespass is aplicable.

Now, the same situation in a Walmart would be different, because Walmart has not created a public space in the same way that a Mall has. (A mall has public areas like food courts, and courtyards etc).

This is an interesting read on the subject.
http://www.firstamendmentcenter.org/assembly/topic.aspx?topic=private_property

yelohamr · Dec 20, 2009

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Rusty wrote:

Being prosecuted for trespass would be a state action. Individuals cannot prosecute.

I am not trying to be a jerk or anything, I just find this type of stuff fascinating.

So, if I was walking around in a mall UOC, and a security guard comes up to me and says

"you have to leave the mall because it is against our rules for you to have a firearm in here."

I could say,

"There is nothing illegal about carrying an unloaded firearm"

And then don't leave.

What will the police charge me with when they show up?

Since I am exercising my constitutional right to bear arms, it does not seem like trespass is aplicable.

Now, the same situation in a Walmart would be different, because Walmart has not created a public space in the same way that a Mall has. (A mall has public areas like food courts, and courtyards etc).

This is an interesting read on the subject.
http://www.firstamendmentcenter.org/assembly/topic.aspx?topic=private_property

If you look around the public entrances to an indoormall, there are usually signs telling the public what they conduct should be in the mall. One of those is no weapons allowed.

In another thread, I posted about my encounter at the Westfield Mall in Carlsbad. I had checked at the security office if UOC was allowed. It isn't. After coming out of Sears, I was met by a Carlsbad LEO. Security had called police about me and I wasn't armed. I had an EMPTY holster. The LEO and I had a good laugh about it. I notified the mall office that I wouldn't shop there again and I would spend my money at WalMart.

MudCamper · Dec 21, 2009

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So a person should be able to come into your house freely, as long as he's preaching his religion/politics/whatever, right? After all, he's exercising his 1A rights. Give me a freakin break. Ridiculous.

As a land owner myself, who has to deal with trespassers/vandals/thieves on a regular basis, I find trespass law to be way to lenient already.

ConditionThree · Dec 21, 2009

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MudCamper wrote:

So a person should be able to come into your house freely, as long as he's preaching his religion/politics/whatever, right? After all, he's exercising his 1A rights. Give me a freakin break. Ridiculous.

As a land owner myself, who has to deal with trespassers/vandals/thieves on a regular basis, I find trespass law to be way to lenient already.

The courts have made a distinction between your home and that of a business that invites the public in. As a private property owner who does not invite the public in, you have more control over who enters your property and their conduct than the owner of a open market place like a mall, theater, or restaurant. When you invite the public to your business, you reduce some of the discretion over who is allowed in and the conduct they exhibit.

This may be the subject of a challenge in the future- but not until we have firmly ensconced the 2nd in incorporation.

Streetbikerr6 · Dec 21, 2009

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ConditionThree wrote:

MudCamper wrote:

So a person should be able to come into your house freely, as long as he's preaching his religion/politics/whatever, right? After all, he's exercising his 1A rights. Give me a freakin break. Ridiculous.

As a land owner myself, who has to deal with trespassers/vandals/thieves on a regular basis, I find trespass law to be way to lenient already.

Click to expand...

The courts have made a distinction between your home and that of a business that invites the public in. As a private property owner who does not invite the public in, you have more control over who enters your property and their conduct than the owner of a open market place like a mall, theater, or restaurant. When you invite the public to your business, you reduce some of the discretion over who is allowed in and the conduct they exhibit.

This may be the subject of a challenge in the future- but not until we have firmly ensconced the 2nd in incorporation.

You know what would be awesome is if the Pink Pistols did an OC demonstration at a business and was trespassed. Hard to kickout a Gay Rights organization here in California without having every liberal news media putting your business name in shambles. I wonder if any Pink Pistol members OC?

Mike · Dec 21, 2009

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Rusty wrote:

Since I am exercising my constitutional right to bear arms, it does not seem like trespass is aplicable.

Come on, surely you understand what we are talking about - state action means action by a goverment to deny you a right. The government in prosecuting for tresspass is prosecuting for violating a law that makes it a crime to refuse to vacate private proerpty on comman of the owner or his agent. And in any event, the private entity could also bring a civil action against you for tresspass.

MudCamper · Dec 21, 2009

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ConditionThree wrote:

MudCamper wrote:

So a person should be able to come into your house freely, as long as he's preaching his religion/politics/whatever, right? After all, he's exercising his 1A rights. Give me a freakin break. Ridiculous.

As a land owner myself, who has to deal with trespassers/vandals/thieves on a regular basis, I find trespass law to be way to lenient already.

Click to expand...

The courts have made a distinction between your home and that of a business that invites the public in. As a private property owner who does not invite the public in, you have more control over who enters your property and their conduct than the owner of a open market place like a mall, theater, or restaurant. When you invite the public to your business, you reduce some of the discretion over who is allowed in and the conduct they exhibit.

This may be the subject of a challenge in the future- but not until we have firmly ensconced the 2nd in incorporation.

Well I personally am referring to rural lands, where trespassers can come and go as they please and land owners have almost no recourse. Even with signs and fences and gates you have no legal recourse against trespassers unless you catch them on your land, tell them to leave, and they don't.

I just find any arguments against private property owners rights for any reason annoying. The law is already on the side of the vagrants/trespassers. IMO property owners should be able to tell whoever they damn well please to get the hell out for any reason they want.

NightOwl · Dec 21, 2009

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Rusty wrote:

Being prosecuted for trespass would be a state action. Individuals cannot prosecute.

I am not trying to be a jerk or anything, I just find this type of stuff fascinating.

So, if I was walking around in a mall UOC, and a security guard comes up to me and says

"you have to leave the mall because it is against our rules for you to have a firearm in here."

I could say,

"There is nothing illegal about carrying an unloaded firearm"

And then don't leave.

What will the police charge me with when they show up?

Since I am exercising my constitutional right to bear arms, it does not seem like trespass is aplicable.

Now, the same situation in a Walmart would be different, because Walmart has not created a public space in the same way that a Mall has. (A mall has public areas like food courts, and courtyards etc).

This is an interesting read on the subject.
http://www.firstamendmentcenter.org/assembly/topic.aspx?topic=private_property

They will charge you with trespass, and it will stick. The security guard is an agent for management, who in turn is an agent for the owner. When that guard asks you to leave, it is with the legal authority of the property owner backing the request up. It doesn't matter if the public comes to visit the food court, it is still private property, and you are still being ejected.

Refuse if you like, it will result in some charming braclets being placed on your wrists, with a complementary back seat ride to booking. Nitpicking at it won't change the fact that thereare no legal grounds for refusing a request to departprivately owned property from the owneror their agent.

I'm kind of surprised that you included a link which goes completely counter to what you seem to be trying to say. From what I read on that page, the US SupremeCourt, as well as many lower courts, agree that it's not applicable in many/most privately owned property situations, including shopping malls.

CA_Libertarian · Dec 23, 2009

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Rusty wrote:

Being prosecuted for trespass would be a state action. Individuals cannot prosecute.

I am not trying to be a jerk or anything, I just find this type of stuff fascinating.

So, if I was walking around in a mall UOC, and a security guard comes up to me and says

"you have to leave the mall because it is against our rules for you to have a firearm in here."

I could say,

"There is nothing illegal about carrying an unloaded firearm"

And then don't leave.

What will the police charge me with when they show up?

Since I am exercising my constitutional right to bear arms, it does not seem like trespass is aplicable.

Now, the same situation in a Walmart would be different, because Walmart has not created a public space in the same way that a Mall has. (A mall has public areas like food courts, and courtyards etc).

This is an interesting read on the subject.
http://www.firstamendmentcenter.org/assembly/topic.aspx?topic=private_property

Wal-Mart is just as public as the food court in the mall. It's the same in principle: it's private property that is opened to the public for the purposes of selling stuff to turn a profit. Neither business is a membership club (like Costco), so it's open to the public.

And being open to the public doesn't mean they're forfeiting ALL of their rights as property owners. No different than if you decide to have a yard sale in your front yard. Since you're opening your front yard to the public, would you then be required to allow people to come and go as they please? What if I decide I want to stand in your yard holding a sign saying terrible things about you and your family? -- Of course you would be well within your rights to make me leave.

yelohamr · Dec 23, 2009

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CA_Libertarian wrote:

...What if I decide I want to stand in your yard holding a sign saying terrible things about you and your family? -- Of course you would be well within your rights to make me leave.

Wow, was that you?

cato · Dec 23, 2009

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However CA has intruded on private property rights and declared many such places like parking lots and malls as "public places" in which 1st Amendment activity like sign waiving, petition signing, union/political activity as well as asking for donations can not be prohibited by the property owner (sorry no cite). So the r/p may be on to something.

Again wait until the 2nd A. is more firmly a right and this concept has been resolved through civil actions before attempting.

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