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Thread: Criminal trespass

  1. #1
    Regular Member Lante's Avatar
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    Ok enough! Being one who issues criminal trespass warnings, removes people from buildings where they are either not wanted or not permitted to be, and who has worked with law enforcement officers for 23 years to resolve criminal trespass issues for private property owners, and their representatives, the ad hoc discussions, and mis-information on this issue has driven me to distraction.

    Here is the law, the way it works in 99% of WA cities (I have never found one that is the exception but there has got to be one out there).

    RCW 9A.52.070 Criminal trespass in the first degree. (1) A person is guilty of criminal trespass in the first degree if he knowingly enters or remains unlawfully in a building. (2) Criminal trespass in the first degree is a gross misdemeanor.

    RCW 9A.52.080 Criminal trespass in the second degree. (1) A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in or upon premises of another under circumstances not constituting criminal trespass in the first degree. (2) Criminal trespass in the second degree is a misdemeanor.
    If I (or anyone else from the business), asks you to leave, that is our right. The position of the person asking comes into play with how seriously the responding officer takes the complaint. (ie credibility). HOWEVER being "trespassed" from a building is NOT a criminal offense. No fine, no jail nothing. Being Trespassed is not Criminal Trespass...

    Here is how this works.
    1. Prior to you ever arriving at the store the Property management has signed a Criminal Trespass Agreement with the local law enforcement agency. (If they are pro active. Normally they will have a seemingly nonsensical sign posted somewhere saying "CRIMINAL TRESPASS PROHIBITED" - you think DUH!!! But this is your warning that they have an agreement with the local LEO's.)
    2. You enter the business and for whatever reason, the clerk doesn't like you and tells you to leave. You don't. No paperwork is filed. The LEO's are called.
    3. The position of the person asking you to be trespassed comes into play with how seriously the responding officer takes the complaint. (ie credibility). Short of a store manager or security officer being the requesting party the LEO will normally request you leave - end of story. If a manager or other direct Property Management Representative is asking, or you refuse the LEO's request then a Criminal Trespass Warning will be issued. If the store has a Criminal Trespass agreement with the local law enforcement agency the manager or security officer may also issue a Trespass warning. The Criminal Trespass Warning is some Pro Forma paperwork which you will sign, and often your photo will be taken. You will be warned that you will be in violation of the Criminal Trespass statutes if you return within X # of years. The Store will then keep this Criminal Trespass Warning on file - in case you return.
    4. So far NOTHING legally serious has occurred. You have simply been informed of the actual legal desire of the business.
    5. If you are looking for trouble, you return to the business within the period of time covered by the Criminal Trespass Warning. If you get recognized, the business now has the option of calling the LEO's and asking for your arrest under the statues quoted above. LEO's like their cases tidy. They like to see you or video of you, walking around the store - proving you were their of your own free will. At this time you may be cited for Criminal Trespass in the first or second degree.
    The above does not deal with Criminal Trespass for obvouious violations of entering a business or home that is not yours, or when closed to the public, or stockroom areas listed as Employees only. These areas have a different set of standards.

    Hopefully this clears up some of the confusion.


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    Thank you very much for taking the time to post the LAW and your extensive experience with this part of it!

    I applaud your conciseness and clarity.

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    Hopefully this clears up some of the confusion.
    Trust me, it won't.

    Can you write up an analysis of trespass without consideration of Criminal Trespass Agreements and Criminal Trespass Warnings? I ask because there is no reasonable way for the man on the street to know which businesses have signed CTAs, and so when he deals with a business, he must do so only from the perspective of comporting with the criminal code. He cannot know the internal policies of the business, nor what agreements they have entered into. In fact, it's none of his business.

    The Criminal Trespass Warning is some Pro Forma paperwork which you will sign, and often your photo will be taken.
    Under what authority?

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    Regular Member Lante's Avatar
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    Easy... the only kind of trespass that you can "get in trouble" for is Criminal trespass. There is no simple trespass under any legal code.

    The confusion sets in because the lay person equates "being trespassed" either verbally or legally through a "Trespass Warning" with a violation of the RCW's. Being Trespassed or having the cops called because you are Trespassing since you ignored the pimply faced kid behind the counter is disturbing, and annoying but nothing else.

    As far as Trespass Agreements go, the average citizen does not know, or care which business's have them and which do not. But most police agencies will not even issue a Trespass Warning UNLESS the business has first entered into a Trespass Agreement. (Frankly the PD does not want to deal with clerks screaming "I don't like him!!!! DO SOMETHING!!!!") If the business does not have the Agreement, and you haven't really ticked off the responding LEO you will simply be asked to leave the store by someone bigger than the clerk....someone with a badge and a gun.


    As far a authority for the paperwork....it is something that is done because the police officer or PMO rep asked you to....if not it annoys the LEO, shows you are "uncooperative" (yes I KNOW), and in my experience is generally equal to a cop pulling you over for speeding, giving you a warning, and you refusing to sign the warning, or tossing it back at the cop....the cops "I am bored and just want to get out of here" attitude vanishes.

    As far as the photo goes....here you have some leeway. The LEO definitely wants your photo on the form. The business may or may not have a policy about this as there are some minor liability issues for them. It ultimatly comes down to the business (who will be keeping the paperwork anyway) as to how much they want your photo, and how much trouble they are willing to go through to get it.

    Sorry for the long answer but I hope this clears up those points.


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    Regular Member j2l3's Avatar
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    We don't bother with the photo where I work, I just pull a picture off of the security video. Much less confrontation that way.

    Nice explanation Lante, see you at the Club again soon?
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    Regular Member Batousaii's Avatar
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    Lante is 100% correct.. i can say this, as i to deal with this on a regular basis.

    - Dean is correct in expressing, that no matter how much you explain it, people wont get it (until they return and get arrested, usually cite and release, end up standing in court).

    "The Criminal Trespass Warning is some Pro Forma paperwork which you will sign, and often your photo will be taken." --- This is correct too, and will be backed up by the police when they arrive. -- Authority? - your on private property, curators will follow their removal, detention and use of force protocols that are repaired by lawyers and observed by the local LEO... if you dont like it, sue them and hope your lawyer can beat up the establishments lawyer (or team there-of).

    Not trying to be a jerk here, just stating what I know to be true via years of experience...

    Bat.

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    Authority? - your on private property
    What I'm asking is, what if I don't sign, don't cooperate with a photo, and just leave?

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    1st off if I am asked to leave I will leave. But seriously do people actualy sign and allow a photo? Im with Dean on that one.
    Throw me to the wolves and I will come back leading the pack.

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    Regular Member Batousaii's Avatar
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    deanf wrote:
    Authority? - your on private property
    * What I'm asking is, what if I don't sign, don't cooperate with a photo, and just leave?

    * 90% of the time, the leaving part is all that the curators will want... so, ifone iswalking towards the door complaining about x-y-z... thenthat onewill simply be followed out the door to ensure that they leave. - just that simple- If however they become confrontational, and give reason to believe that it may turn physical or cause a disturbance that could cause panic, then that one may well find themselves being handcuffed and detained forcibly (thats a safety factor to ensure harm is minimised). I know that usually the "walk and talkers" aren't going to see an extended trespass so long as it doesn't become a re-occurring issue. Many facilities have video that can easily zoom in to see ones acne, and all that is really required is a photo, and to clearly elaborate to the offender that they are banned for "x"-time frame. After that, refusing to leave, or doing so very slowly may end up as an ordeal involving the police... The police are usually going to remove the person the first time - and arrest the second. The "dumb-ass" factor plays a large part here when dealing with the police, curator, offender, and how the police will deal with any of the individuals, including the curator. (Note "dumb-ass" factor on a guard that tried to disarm the open carrier recently -- he (guard)was 100% in the wrong, and likely lost his job, may face legal ramifications, even noting the establishment did not allow firearms, the guard was way out of line and payed for it--- door swings both ways FYI).

    "1st off if I am asked to leave I will leave. But seriously do people actually sign and allow a photo? Im with Dean on that one." --- Not always a choice .. and just because you dont sign, doesnt mean you arent trespassed. RE: CCTV .. and .. If one cause a serious situation (disturbance creating panic) , got physical, or caused damage, they will likely bedetained as a safety measure, and then the photo is going to be the next step, papers simply need to be validated by the police - then the Ban is finalised. usually not an arrest the first time, though i have seen people get hauled off by the police ... again the "dumb-ass" factor plays a big role there.

    - all-in-all .. Private property is just exactly that - if you call the police to remove your loud-mouth friend from your house, he will experience a similar result as someone refusing to leave an establishment.

    NOTE: even i am a curator myself, i personally believe that "private property open to the public" should have a separate set of R.C.W. so as to accommodate certain constitutional rights that, in my humble opinion, should preempt "open to the public" rights. The OTP properties should however always retain the ability to maintain order and curtail social behaviour inside their properties (no screaming, swearing, inciting, gang related or inflammatory material/slogans etc.) --- Just my opinion there.

    Hope that helps.

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    Regular Member Lante's Avatar
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    Batousaii has it exactly right... if all we want is for you to leave, and you are leaving, why create a problem??? (of course the dumb-ass factor is present on both sides)

    +1

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    OK Bat, I guess my problemwas because I would just leavewas why I was having such a bad time understanding the signing a document and allowing a photo part.

    I have always felt that not spending my money and encouraging everyone I know to do the same at a specific store, was the best way to protest. I did not spend any money at Sears for over 25 years after an incident with store security where law enforcement was called, I declined to press charges on store security.

    I also understand the Dumb-ass factor is always in play.

    Thanks for the education
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    Campaign Veteran Right Wing Wacko's Avatar
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    Now for an added twist.

    What if the establishment is not private property but instead a State office, say for example the Department of Licensing (Drivers License Office). A clerk refuses you service and insists you must leave because you are carrying a firearm properly holstered on your belt.

    BTW: This is not a rhetorical question

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    Regular Member sudden valley gunner's Avatar
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    Right Wing Wacko wrote:
    Now for an added twist.

    What if the establishment is not private property but instead a State office, say for example the Department of Licensing (Drivers License Office). A clerk refuses you service and insists you must leave because you are carrying a firearm properly holstered on your belt.

    BTW: This is not a rhetorical question
    Have NavyLt write them a letter. He got the signs removed from Bellingham DOL. When I posted the pics here. I continued to carry anyway and nothing was said.

    Record the interaction, and show them the pre-emption RCW's.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Regular Member Lammo's Avatar
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    Good account re: trespass. Thanks for your time and trouble. Hopefully people will read, comprehend and understand.

    One additional little twist. If you have been "trespassed" from a business, e.g., a department or grocery store, and return with intent to commit a crime you become a burglar and, thus, a felon.

    Happens most often with someone trespassed after being busted for shoplifting who then returns to shoplift some more (gotta feed that crack/crank habit somehow). Not saying I like it but it is the law in this state. Look up State v. Kutch, 90 Wn. App. 244, 951 P.2d 1139 (1998).

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    Record the interaction, and show them the pre-emption RCW's.
    With respect to state offices, preemption is an invalid argument. A constitutional argument is more appropriate.

    Discussion: The State cannot preempt itself. RCW 9.41.290 prohibits "Cities, towns, and counties or other municipalities" from enacting "laws and ordinances". State offices are not cities, towns, counties or other municipalities. Their (unconstitutional) rules are not laws or ordinances. For these reasons, 9.41.290 does not apply.



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    Regular Member sudden valley gunner's Avatar
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    I don't know the way I see it is that it is state law. And the other article was made to ensure that lower governmental institutions don't over step state law.

    Very hypocritical to say here is the law but it only applies to you not us.


    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    I don't know the way I see it is that it is state law.
    Even if the administrative rules of state agencies were law, the state still could not preempt itself. That's a legal absurdity.

    I'm not saying don't argue the case. I'm saying argue the correct case.

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    Regular Member sudden valley gunner's Avatar
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    Yea you are right about state pre-emption.

    I am thinking about how our state only restricts firearms from very few places, and since certain state agencies are not these places. Than any rules from that agency would be null and void by the law. Or preempted in another sense?

    I haven't had any problems at L&I or DOL, NavyLt got the Bellingham DOL to remove it's no weapons signs.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  19. #19
    Regular Member Batousaii's Avatar
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    NavyLT wrote:
    And here's ANOTHER twist that is not rhetorical either. Another customer of a restaurant calls the cops and raises a stink over a lawfully carried firearm. The cop arrives pissed off because the call interrupted the two for one doughnut sale down the street.

    At the end of the unpleasant encounter the COP goes and asks (or orders, who knows) a <21 year old waitress to come with him while HE proceeds to remove you from the premises.

    How's that one for a situation! Dang I wish I knew then what I know now.
    From my personal standpoint, the LEO would be 100% in the wrong, and may be in violation of coercion if the lil-waitress woke up and realised what happened (or realised what was happening as it played out). So, in this regard, it is only the site representative that could ask the OCer to leave, not the police. In fact, if the manager arrived to find the waitress being coerced (or if waitress herself realised) she could order the LEO off property, even trespass him... Police are not above the law, just that some seem to sift through it somehow, and as shown, it's a bit harder to prosecute a zealous officer than a zealous citizen. .. to point, the police are not supposed to tell property reps how to run their establishments, or force them to make patrons or visitors leave... the police can take you away if your wanted for other crimes... or he can kidnap you (sarcasm there-lol).

    Bat
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    Regular Member Batousaii's Avatar
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    Glad to hear it all ended well for you, did the property manager ever file a complaint with the PD? or they just let it be? - I hope the PD realises how much trouble they could have been in.
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    Campaign Veteran gogodawgs's Avatar
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    I have been a retailer for 20 years. And I can tell you as a 'practice' if I ask someone to leave they generally do (because they were stealing or dropping the F bomb and wouldn't stop). Those very few that actually wait for me to call the police then leave when the police arrive (I tell them in the PD presence).

    Only those who are shoplifters that I have detained are actually officially trespassed. And yes I have a form for them (do not require a signature) and have generally taken their picture.
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