Every state considers trespass – as well as other forms of property and personal injury – a crime. Plan your response prior to intrusions.
The on-farm horror story typically starts innocently enough – a neighbor calls. Someone in a pickup truck is in the back 40 where you usually park your sprayer and cultivator. Is that pickup up to no good?
Or, perhaps the tension starts when your daughter notices that the wireless video camera monitoring the barn shows a shadow moving around. Who is out there at this time of night?
It is not always someone with bad intentions. Perhaps you notice someone crossing a meadow. Or you note that there are a couple of kids on ATVs tearing through your alfalfa field.
What do you do?
Take three deep breaths!
The law frowns on all forms of trespass. Every state considers trespass – as well as other forms of property and personal injury – a crime. All allow a property owner to sue for damages that result from trespass.
However, except in extreme circumstances like murder, it is a bad idea to go “Rambo” on anyone you find on your property.
Yes, those folks are trespassing. A typical definition of “trespasser,” one which would hold up in most state courts, is a person who enters someone else’s property for their own purposes without being authorized, invited or induced to do so by the landowner. Usually, the definition of landowner is expanded to include a property lessor or renter, hired person or other person who reasonably would be expected to have control or authority on the land.
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Just as the law will back you up if someone trespasses, the law also protects the trespasser. States all say that a property owner has a “duty of care” to interlopers on their farm.
For starters, farmers cannot just start plunking away with a 12-gauge or 30.06 when they spy someone on their ground. Most state laws say a property owner has a duty to keep from intentionally harming a trespasser upon discovery.
On top of that, setting up booby traps is forbidden – even if those booby traps are intended to catch trespassers. In short, stringing piano wire across a trail where mountain bike riders often run will cause trouble for the property owner.
The rules are totally different if a person is invited onto the property – say the holder of a hunting lease or a person who is on a pick-your-own operation. FARMING covered those scenarios in its November 2015 issue.
Don’t go macho
A scene from the recent movie “Hell or High Water” shows the danger of taking law enforcement into your own hands. After crooks rob a rural bank, a group of local cattlemen takes off after the getaway car. Each pickup truck has a gun rack. Many of the ranchers are carrying handguns. As the showdown plays out, it turns out the bank robber has an automatic weapon and quickly sends the townsfolk into a headlong retreat. The locals are happy to turn the situation over to law enforcement.
When confronting a criminal, one never knows what the bad guy will do.
One thing is for certain: in most states it is the landowner who will run afoul of the law if they do any harm or apprehend a criminal. The exception is if a felony – like murder – has been committed.
The concept of citizen’s arrest – where a private individual holds a person suspected of a crime – is shaky at best. Many states, including Massachusetts and New Hampshire – require a felony situation before an individual can attempt a citizen’s arrest. Many states are silent on the issue. In Vermont, statute 13-59-4954 spells out someone not a sworn police official can hold a person charged with a crime in another state for extradition. But it is strangely silent on crimes committed within state borders.
New Jersey (which does not have the felony designation that other states have) says in NJSA 2A:169-3, “Whenever an offense is committed in his/her presence any constable or police officer shall, and any other persons may, apprehend without warrant or process any disorderly person, and take him/her before any magistrate of the county where apprehended.”
In many jurisdictions, the closest parallel to a farmer holding a person suspected of bad intent on a farm is a store owner holding a person suspected of shoplifting. It goes better for the owner if it is proven that the individual in question is, indeed, in the process of a wrongdoing. If the bad guy is blazing away with a gun, a landowner has every right to defend himself or herself.
New Jersey says a private citizen – farmer, shop keeper or homeowner – may lawfully arrest another person without a warrant if they know that a crime has actually been committed and that there is probable or reasonable cause to suspect that the person detained did the crime.
There can be no delay in notifying the law. When a citizen’s arrest is made, the detainee must immediately be turned over to legal authorities and a warrant must be issued based on the complaint.
However, the law often is not on the landowner’s side if the farmer causes harm to a person simply because that person is on their property or because they suspect that maybe the other person intends to or will harm their property.
In those states that do allow a citizen’s arrest, most require that the citizen making the arrest has actually seen the crime being committed. In other words, if your neighbor calls and tells you a black Ford F-150 was pulling out of your Back 40, you have no right to go out on the road, stop and detain the next black F-150 that comes down the highway.
Despite what many groups will maintain on the internet, the whole concept of holding another person at gunpoint (or any other way) because you saw or suspect them of a crime is fraught with danger – for you.
You read that right: the bad guy has rights, too.
You cannot detain a trespasser unless that individual has committed a felony. Being on your land is not enough.
The trespasser gives up that presumption if he demonstrates the ability, intent and opportunity to cause you or another person bodily injury or death.
Remember, a trespasser can sue you for injury or damages – whether you actively cause the injury or the trespasser accidentally stumbles into the situation while wandering around your property.
My home is my castle
Many states recognize some form of the “castle doctrine” defense. The common law principle of castle doctrine says that individuals have the right to use reasonable force, including deadly force, to protect themselves against an intruder in their home. This principle has been codified and expanded by numerous state legislatures.
The question on a farm is just how far out you can place the moat around that castle. Pennsylvania defines that area as a “building or structure, including any attached porch, deck or patio, though movable or temporary, or a portion thereof, which is for the time being the home or place of lodging” of the citizen. In Pennsylvania’s 2011 HB 40, the castle is extended to vehicles. The measure is explicit that property owners cannot invoke the castle doctrine if they know they can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim on an item.
Some people refer to the castle doctrine as the “stand your ground” law. Maine gives citizens the right to stand their ground and defend themselves when they believe that deadly force is being or is about to be used against them. Maine Criminal Code Title 17A also allows the use of deadly force if someone is trying to burn down your barn or otherwise commit arson.
Maine’s 2007 law is quite broad and includes as part of one’s castle any land, private ways and buildings or structures thereon. Other states do not go so far as to cover cattle barns or hog facilities.
Ability to justifiably use of non-deadly force is simple and broad under Maine’s Castle Doctrine. “Non-deadly force can be used if you reasonably believe it’s necessary to prevent someone from trespassing, or about to trespass, on your land, private roads, or in any buildings on your land,” according to attorney William T. Bly, Biddeford, Maine.
Under Maine’s law, deadly force cannot be used against someone inside your own home until you’ve given them the opportunity to stop their criminal activity, by demanding they stop what they’re doing, and leave the premises, Bly said. “Using deadly force to defend your home is only justified if the intruder doesn’t immediately comply with your demand.”
With that said, Bly said that a property owner who reasonably believes that confronting the intruder would put you or someone else in danger, then demanding that the trespasser stop what they’re doing and leave is not necessary before you use deadly force.
In other words, you cannot shoot someone who stops when you catch them attempting to steal something from your barn. Nor can you shoot a bad guy who is in full retreat from you.
It is an interesting call – note all the professional law enforcement agents who face legal action for on-the-job shootings.
There are interesting exceptions to the Pennsylvania law. One is if the item being stolen is any amount of anhydrous ammonia. This does not imply that legislators want farmers to have a right to tall, green corn. Rather, they were worried about criminals using it to make bombs. There is an exception for firearm theft, too.
Given the landowner was operating within the boundaries of the law, Pennsylvania holds that person free of liability or damages.
There are 22 states with self-defense laws including Maryland, New Hampshire, Pennsylvania and West Virginia. New Jersey goes further, asserting that civil remedies are unaffected by criminal provisions of the self-defense law.
Some state self-defense laws include provisions that address a property owner’s duty to retreat from an intruder in one’s home or from an attacker in other places, notes the National Conference of State Legislatures.
In Maine, you must warn the intruder about your intent to use deadly force before doing so. Know what your state laws say.
Dealing with kids
All of the above applies to adults. The story is different with children.
There is a much heavier burden on a property owner when it comes to protecting children who may stray onto a property.
Whereas most adults would say “ugh” at the thought of swimming in a manure lagoon, a child might see it as an interesting place to play. And diving into a grain bin can be a fun prospect until the grain shifts.
In many states, however, livestock is not considered an “attractive nuisance.” So, if a child decides to pet a nice sheep and it turns out it’s a ram and that ram takes exception to the trespass, the landowner is somewhat off the hook. This situation varies by state.
Some states go so far as to exempt farm ponds and streams – any “natural” feature – from being termed attractive nuisances.
Whether adults or children, never assume that people are aware of what is dangerous on a farm. Even other farmers or farm children might not be alert to a danger on a neighboring farm.
This means that it is a good idea to eliminate dangers in places where others are likely to come onto your land. Posting warning signs is a first step. Fencing off such areas is another.
When you do such things, keep a record. A simple cellphone photo of your brother nailing up signs is a good start. So is a picture of the barrier around an open pit or other dangerous situation. It will not prevent people from moving the barrier – but it will show you did take due caution to help strangers avoid injury.
Most cops would make lousy farmers. They are not ready – either by training, experience or equipment – to do the job. By the same token, most farmers make lousy police officers.
If there is someone trespassing on your property, call local law enforcement or “911.” Do take notes – get good descriptions of the people and any vehicles used. Again, cellphone photos can prove valuable.
Unless there is a felony being committed – someone is shooting at you – forget about gunplay. Not only will you get into a world of trouble but cleaning up the aftermath of a shooting is a horrid job that usually requires hiring a hazardous materials team.
“Hurting or killing someone in self-defense is a life-changing event,” Bly said, warning that – after the actual conflict – you’ll likely face criminal charges, as prosecutors take you to court to test your claim that you were acting in self-defense.
Consult an attorney now to ascertain exactly what your state’s law allows and does not allow. In the heat of the moment, there will not be time to ring up your farm’s lawyer and ask what actions are defendable and which are not.
Read more: Preventing Farm Theft