Trespass and Public Buildings

 

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.