Criminal trespass vs. criminal threatening

[RoySwkr]

A few years ago, the owner of property adjacent to the RI state highpoint caught several people on his property at night and held them at gunpoint. When the police arrived, they arrested not the highpointers but the property owner and he served time in jail on some combination of kidnapping and weapons charges. The present property owner does not threaten with guns.

A similar situation has just played out in NH. A woman looking to buy real estate took a wrong turn and went up a posted driveway. The man who lived there didn't like the intrusion and went out with a gun in his waistband. The jury chose to believe the woman's statement that he waved the gun at her over his statement that he just pulled it out to check the safety and never pointed it at her. He was sentenced to a mandatory 3-year term for criminal threatening with a firearm, and the state supreme court just upheld the sentence. His friends are protesting both the verdict and the law. [Personally I hope his sentence is commuted as the message has been sent.]

http://www.unionleader.com/article....rticleId=b7746444-ee54-4c1d-a463-b4d7e9925ba9

A couple years ago, the NH legislature considered a bill that would extend your present right to use deadly force inside your home to allow you to protect yourself anywhere. This did not become law as it was thought that the chief people who would benefit would be drug dealers.

I can't speak for AK or AZ, but there is nowhere in New England where trespassing is a capital crime. Society must strike a balance between your right to protect your property and your right to get lost without being murdered by some nutcase. In NH at least you still have the right to order someone off your property even if it is not posted but you must
call the police to enforce this and may not threaten physical violence yourself. Hopefully property owners near certain trailheads will comply.

 

[Kevin Rooney]

...Hopefully property owners near certain trailheads will comply.

Is that fellow near the Cabot trailhead still threatening people with a firearm? I haven't hiked Cabot in several years, and none of my friends have mentioned that it's a problem.

 

[max]

Just about a week ago here in AZ, a homeowner in the Phoenix area faced just such home invasion. Three people physically broke down the front door. The homeowner confronted them with a gun, and one of the perpetrators was armed as well. The homeowner ended up firing his gun, killing one of the intruders and scattering the other two. He was not charged with a crime. Arizona has some pretty loose gun laws, including the absence of identity needed when purchasing a firearm from a private citizen (not at a store or official gun dealer).

I have never come across individuals carrying firearms in a hiking situation, and there is a lot less ownership of private property here than there is in New England when it comes to areas that are popular for hiking. Like Kevin, I too have often wondered about the landowner at the old Mt Cabot trailhead. I had hiked that route a number of times (years ago) before it became an issue over trespassing on private land.

 

[Peakbagr]

Lets all do our best to keep this to the original post about a property owner threatening deadly force for hiker trespass.
While everyone has the best of intentions, this type of thread can get out of control.
Thanks

 

[griffin]

Just about a week ago here in AZ, a homeowner in the Phoenix area faced just such home invasion. Three people physically broke down the front door. The homeowner confronted them with a gun, and one of the perpetrators was armed as well.

I won't pretend to know how this would have played out in NH or Mass, but I have to believe people would see a difference between someone knocking on a door and someone breaking it down or otherwise trying to force their way in; between being obnoxious (hiking on posted land, wanting to preach at you or sell you stuff), and being a threat of some kind.

 

[TCD]

Violent criminals can be clever at masquerading as "innocent hikers" (see the horrible events on the AT a couple years ago). Anyone on my property needs to leave in a straight line to the closest road. No conversations. I don't bear arms, but if I did I would carry it if a stranger showed up. I'd be happy to give directions to the nearest road.

 

[MichaelJ]

Let us also not forget that in the Cabot case, the landowner was not necessarily legally in the right to deny anyone access over the trail's deeded easement. Many people took a "you can't stop us" attitude, which was further bolstered by the Forest Service refusing to take action and deciding to just declare the trail closed, which enraged many people as it meant the landowner was getting additional value to their land, and recreational tax deductions, without due process. This gave even more hikers a "screw you, landowner" attitude. It was an ugly situation and far more complicated that mere trespass over land clearly deeded as private.

 

[TEO]

Anyone on my property needs to leave in a straight line to the closest road. No conversations. I don't bear arms, but if I did I would carry it if a stranger showed up. I'd be happy to give directions to the nearest road.

Wow! I'm glad not to have run into such cold reactions when I've need help, such as when my car had slid into a ditch and I needed to use a stranger's phone. When I'm out for long bike rides, I won't hesitate to stop at a stranger's house to refill my water bottles. Fortunately, every stranger that I've asked a favor of has been kind to me.

 

[griffin]

Violent criminals can be clever at masquerading as "innocent hikers" (see the horrible events on the AT a couple years ago). Anyone on my property needs to leave in a straight line to the closest road. No conversations. I don't bear arms, but if I did I would carry it if a stranger showed up. I'd be happy to give directions to the nearest road.

Putting aside the argument over how likely it is that the hiker in your hard is in fact a violent criminal intent on harm (because I don't think it's productive and it's also OT):

If someone is standing in your yard and not leaving when you tell them to (but not actually trying to get at you or in your home), do you think shooting them is a reasonable response? Do you think it SHOULD be a LEGAL response?

 

[David Metsky]

Moderator Note
Let's direct this back to something that at least remotely relates to hiking. Off topic contributions will be removed.

 

[TCD]

A deeded easement is totally legit. Hikers on a deeded easement should not be bothered by anyone. The governement, or some organization, has paid for this right of passage. But if I am going to want to hike over private land where there is no easement, I ask permission in advance. When the answer is "no" I accept it. Once or twice, I have found myself passing unexpectedly through a little corner of private land on my way out to the road. I go through as quickly and quietly as possible, leave as little trace as possible, and take the shortest route off the property. If I encountered the landowner, and they ordered me off the land, I would go as quickly and quietly as I could, and I would view them as being totally within their rights (this has not happened to me). I view that as part of responsible hiking.

(There have been all kinds of scary cases, and I would not blame anyone for being wary or seeming cold to me (even though I'm not very imtimdating!). If I needed help (let's say my car was stuck), I would stand well away from the door, and politely ask the person in the house to call 911 for me. That's all.)

 

[Billy]

...If someone is standing in your yard and not leaving when you tell them to (but not actually trying to get at you or in your home), do you think shooting them is a reasonable response? Do you think it SHOULD be a LEGAL response?

Maybe and Yes.

I'm hiking and I go off trail and accidentally end up in someone's yard. The owner comes out and tells me I'm on private property. My first reaction better be, "Oops, sorry, didn't know, see ya." If he tells me to leave and I refuse (to use your example), then I've got no problem with him pulling a gun. Do I think he should pull the gun and immediately give me two in the hat? No. But if I'm a hiker on his property and I continually refuse to leave, and he puts one in my foot or leg.....seems to me I had it coming.

And before you ask, no, I'm not kidding. There are enough public places to hike. Hiker's shouldn't be messing with private property, unless it's with the owners' permission (or easements).

 

[Chip]

If someone is standing in your yard and not leaving when you tell them to (but not actually trying to get at you or in your home), do you think shooting them is a reasonable response?

No, it's not. First, that's what police are for. Second, the trespasser may be injured, confused, hypothermic, foreign (not understanding you), lost, etc.

The more you understand firearm laws, the more you understand how rare it is for a shooting to be deemed justified. GENERALLY, lawfully shooting someone needs to be a response to imminent attack, likely to result in life threatening injuries and death of you or a family member inside your home, AFTER you have expressly warned the attacker to cease, desist and exit the premises. In a situation like that, the shooting may still be found unjustified, but I wouldn't care, because I was saving my life or someone elses.

Unless you live in Texas, you can't shoot trespassers and expect to get away with it.

 

[DrJJFate]

Unless you live in Texas, you can't shoot trespassers and expect to get away with it.

There are a few others. For anyone interested:

Castle Doctrine

 

[Chip]

There are a few others. For anyone interested:

Castle Doctrine

Yeah, I'm no lawyer, but most of that seems to support what I said: These laws relate to an intruder breaking into your home ("Castle") and putting you at risk of injury or death...They don't give you the right to shoot a belligerent trespasser, or confused hiker, in your front yard.

I love this quote: "Detached reflection cannot be demanded in the presence of an uplifted knife."

 

[RoySwkr]

Is that fellow near the Cabot trailhead
still threatening people with a firearm? I haven't hiked Cabot in
several years, and none of my friends have mentioned that it's a
problem.

I don't think he is trying very hard to enforce it, he has some new signs which announce the trail is closed but probably aren't legally enforceable as they don't contain his name and address, and his adjoining land isn't posted so you can just bushwhack around. Higher up he has a locked gate which people have been driving around with no attempt to stop them. I doubt he is lying in wait, but if he is hunting on his property when you go by you might see him with a gun.

But if he threatens you with it, that will solve the Mt Cabot problem for 3 years as after the Bird decision no court is likely to find it reasonable for him to violently protect his woodlot even if they determine that the right-of-way is invalid.

If someone is standing in your yard and not leaving when you tell them
to (but not actually trying to get at you or in your home), do you
think shooting them is a reasonable response? Do you think it SHOULD
be a LEGAL response?

No. No.

Note that in the other recent hiker case (Ossipee Mtns), the property owners chose to take legal action rather than waiting with guns even though some visitors were damaging the property by cutting trails, digging holes, and building fires. That way, they got sympathy from the press which would not have occurred if they shot somebody.

Mr. Bird's friends object to the verdict in part because the defense wasn't allowed to say that the woman was an animal hoarder (and perhaps somewhat ditsy) and so the jury believed her over the local Scoutmaster. If she really was slow-witted, that could explain why she got lost and why she didn't leave promptly. But times have changed, and mentally disturbed people are no longer considered threats to be locked up but rather are a minority group that receives special protection from the state. Once the jury believed that he was waving a gun just because someone wouldn't leave his yard, the verdict was obvious and had it been proven the visitor was deficient his sentence might have been even more "enhanced".

I hope this case receives wide publicity so landowners are notified to cool it a little. Now that it is apparently illegal to make maps of publicly-accessible property in NH, hikers will sometimes stray from where they are supposed to be and the last thing they need is to be threatened with guns.

There is a national pistol shooting champion who teaches armed self-defense and his advice is to carry a folded $20? bill handy and offer it to anyone who appears threatening to go buy himself a drink or something. That way if you do wind up shooting him you can say you did everything possible to defuse the incident, while the expense and aggravation you will face after even a justified shooting is immense.

 

[Kevin Rooney]

... protect his woodlot even if they determine that the right-of-way is invalid.

I believe there's a cabin about 100 yards off the trail. The last time I was there it was difficult to see, and unless some brushing out has been done, it may be totally obscured.

I don't know if this would change the nature of the offense or not.

 

[RoySwkr]

I believe there's a cabin about 100 yards off the trail. The last time I was there it was difficult to see, and unless some brushing out has been done, it may be totally obscured.

I don't know if this would change the nature of the offense or not.

The cabin is on a small tract owned by a different individual who won in court when the party of the first part insisted he had no right to travel to the cabin. That's one reason I consider the guy to care more about his own opinion that the law - and maybe why he prefers threats to legal action.

 

[Puck]

The more you understand firearm laws, the more you understand how rare it is for a shooting to be deemed justified.

Great point. I know the law in CT states that you can not expose a concealed weapon as it will be seen as a threat. So a landowner who talks to you and shows you that he has a weapon would be in violation.

 

[RoySwkr]

The Ossipee Mtns trail map shows the Ward Bird property (mapped before signs went up), probably not a good idea to go there though

Two recent articles have different "facts" and seem to explain why he wound up in jail:

The police say he was involved with numerous altercations with his relative selling the adjoining property, and that he changed his story:
ftp://www.laconiadailysun.com/Laconiapdf/2010/12/23L.pdf

His lawyer decided not to put on any defense, so the jury never heard his side of the story - hence had little choice but to convict him:
ftp://www.laconiadailysun.com/Laconiapdf/2010/12/22L.pdf