needing advice on tresspass in Indiana

New to the forum and am hoping someone can offer some advice. My wife and I own our home, the home is between a used car lot and a home owned by the same man that owns the car lot. For some reason he seems to be under the assumption that he has free range to use our property for whatever. We have posted no tresspassing signs on all 4 sides of our property. It started with pulling over the unmarked property lines to now people who do work for him (construction and mowing) parking on our property. Where do we stand as far as being able to do something about this. I should mention have called the city police and they say as long as no damage let it be (the owner is on the city council) but we are tired of being overan by him. Thanks in advance.

This is simple to address. Either erect a FENCE on the property line (after having survey done) OR serve him with a trespassing notice. This is different from a restraining order because you don't need to have a hearing to show cause. Just go to the police and tell them you want a trespass notice served on him and his employees, including the maintenance, and landscaping folks. IF and when they PARK there, have their cars towed AND call the police immediately and they can be arrested for coming onto your property.

Good luck....... let me know how it goes.

I am an attorney. Although I have been watching this site for awhile, I haven't posted advice in response to a thread before now.

I concur with GentleGrace.

I would add that if you do not want to build a fence and cannot get the police to take action, even after doing everything she said, there is a civil law remedy. You can always go into court and seek an injunction prohibiting the other property owner from any further trespass. If the other property owner continues to offend, he can generally be held in contempt of court, which can include fines and even jail time.

The injunction route is a lot like using a sledgehammer as a flyswatter, and it is probably more expensive than building a good fence. It is, however, one of your options.

Oh, I should add that in most states you can also use "self-help", including some degree of "reasonable force", to repel trespassers. In a way, having the cars towed is a subset of that. However, please don't go beyond that. I have seen cases where neighborhood standoffs get entirely out of hand and the person who was defending his property was charged criminally for use of excessive force. It is generally better to solve these sorts of problems the way GentleGrace suggested or, if necessary, in court.

Good luck.

This thread is a perfect example of the old adage, "Good fences make good neighbors".
Most states allow self help in removing trespassers? Really? From whence does your information come?
My understanding is that there are not ANY states that allow self help measures in ejecting trespassers. In fact, the article on the informational part of this forum states very clearly that is it not permissible. http://www.legalmatch.com/law-librar...espassers.html

Perhaps you could specify which state allows self help in removing trespassers, but I have been unable to find one.

GentleGrace -

A fair question.

“Self-help” or use of force against trespassers is certainly justified in the three jurisdictions where I am licensed to practice as well as under the Model Penal Code.

Here is the “short list” of citations in the three states where I practice: Oregon Revised Statutes (ORS) 161.225; Revised Code of Washington (RCW) 9A.16.020; California jury instruction 3475. (I set forth the text of each below.)

Beyond Oregon, Washington, and California my opinion was based upon the Model Penal Code Section 3.06, which allows force to terminate a trespass (also quoted below). The Model Penal Code is of course, just that, a model, and has not been adopted wholesale. I understand, however, that it has been utilized in over two thirds of the states. Professor Paul H. Robinson, University of Pennsylvania, Criminal Cases and Controversies page 24 (2005); see also, P. Robinson and M. Dubber, The American Model Penal Code: A Brief Overview (2007) (the latter document is available online if you Google it. I tried to pick up a direct link and it wouldn’t attach.)

I looked at the article you cited and its conclusion surprises me in light of my experience in Oregon, Washington, and California, and the Model Penal Code. I confess I have not specifically researched this beyond the three states where I practice. I note that the article you cited just states a conclusion. I did not see a state by state analysis so I would hesitate to rely on that either. I am not about to research each state’s criminal code and write a Law Review article on the subject so I will revise my opinion and consider it an open question in states other than Oregon, Washington, and California. I will also try to avoid stating things in an overgeneralized way on this site in the future. Thank you for your comment. As a newcomer to this sort of thing I found it helpful to be kept on my toes.


TEXT OF CITATIONS IN OREGON, WASHINGTON, CALIFORNIA, AND UNDER MODEL PENAL CODE

Oregon Revised Statutes (ORS) 161.225. “Use of physical force in defense of premises” provides:

(1) A person in lawful possession or control of premises is justified in using physical force upon another person when and to the extent that the person reasonably believes it necessary to prevent or terminate what the person reasonably believes to be the commission or attempted commission of a criminal trespass by the other person in or upon the premises.
(2) A person may use deadly physical force under the circumstances set forth in subsection (1) of this section only:
(a) In defense of a person as provided in ORS 161.219; or
(b) When the person reasonably believes it necessary to prevent the commission of arson or a felony by force and violence by the trespasser.
(3) As used in subsection (1) and subsection (2)(a) of this section, “premises” includes any building as defined in ORS 164.205 and any real property. As used in subsection (2)(b) of this section, “premises” includes any building.

_______________________

Revised Code of Washington (RCW) 9A.16.020, “Use of Force - When lawful” provides, in pertinent part:

The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:
. . . . .
(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary;

(4) Whenever reasonably used by a person to detain someone who enters or remains unlawfully in a building or on real property lawfully in the possession of such person, so long as such detention is reasonable in duration and manner to investigate the reason for the detained person's presence on the premises, and so long as the premises in question did not reasonably appear to be intended to be open to members of the public;

_____________________

In California we have a specific jury instruction on this subject:

3475. Right to Eject Trespasser From Real Property

The (owner/lawful occupant) of a (home/property) may request that a trespasser leave the (home/property). If the trespasser does not leave within a reasonable time and it would appear to a reasonable person that the trespasser poses a threat to (the (home/ property)/ [or] the (owner/ [or] occupants), the (owner/lawful occupant) may use reasonable force to make the trespasser leave.

Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave.

[If the trespasser resists, the (owner/lawful occupant) may increase the amount of force he or she uses in proportion to the force used by the trespasser and the threat the trespasser poses to the property.]

When deciding whether the defendant used reasonable force, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.

The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable. If the People have not met this burden, you must find the defendant not guilty of <insert crime>.

____________________

Model Penal Code Section 3.06. Use of Force for Protection of Property.

(1) Use of Force Justifiable for Protection of Property. Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward the person of another is justifiable when the actor believes such force is immediately necessary:

(a) to prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property, provided that such land or movable property is, or is believed by the actor to be, in his possession or in the possession of another person for whose protection he acts . . . .

END

Excellent!! This is precisely what this site is about----facts, and not opinions.

Although I rarely refer to the information provided on the legalmatch site, this time I did, and it would seem it is clearly in error. That being the case, I wonder about the countless times the administration of this site has referred users to other links----none of which I have personally verified.

In any regard, your posting is an excellent example of how laws vary from jurisdiction to jurisdiction. In my state, I cannot find a law that allows reasonable force in removing trespassers. It does, of course, confer authority upon the police to use reasonable force to remove tenants, trespassers, etc. but not landowners.

Clearly, as you stated in your original posting, it is possible that in the posters state, he could use reasonable force. Also, as you mentioned, 'reasonable force' can be the proverbial pandoras box, being that it is clearly subjective and any overstepping of what a 'reasonable person' may perceive as acceptable may result in criminal charges. What a very fine line to walk.

A consideration of what is 'reasonable' puts me in mind of a case I will be in court with next week, with a friend over a First Amendment issue regarding a bumper sticker displayed on his truck. He received a ticket for an 'obscene' bumper sticker which read "For a small town, this one sure has a lot of <unpleasant word>". However, if you read the law in my state, it clearly defines 'obscene' s3xually explicit, depicting body parts, etc. The bumper sticker was a bit crude but in no way referred to any type of indecent interest, act, or parts of the body. The officer, however, defined obscene as a crude word referring to someone whose behavior is unpleasant. Fortunately for us, the law clearly defines 'obscene'. Interesting, then, that it does not define 'reasonable force'. That reason alone would give me room for pause before exercising "reasonable force" simply because of the subjective nature of its definition and application.

This was an excellent posting! Thank you for the time and effort you put into making it interesting, informative, and most importantly, accurate.

GentleGrace -

Thank you for your kind words.

I tried to take this one step further and check the Indiana Code, as that is where the person who posted this thread is located. Alas, the government website is temporarily down. I did find some anecdotal posts which suggest that in Indiana reasonable force can be used to repel a trespasser, after first requesting them to leave, but I would not rely upon that. If this is of interest to the person who posted the thread they might Google "Indiana Code" in a day or two.

Having said that, I agree completely that force should (almost) never be used to repel trespassers because so much can go wrong, both legally and in terms of personal injury to the person trying to repel the trespasser. I am rather biased against the use of force anyway, mostly because on a physical leval I am very non-confrontational and, I am sure, would be totally ineffectual in applying force. I can't imagine myself trying to use physical force, let alone being successful, against anyone. LOL. I only mentioned it to begin with because there is law on it at least in some states and also because, as lawyers, we often encounter this issue after someone tried to use force and is accused of acting unlawfully. Then we are doing damage control. Fortunately, that is not the case here.

You're obscenity case sounds interesting and it also sounds like you are in good shape with the defense. You may have thought of this already, but you also might look at the case of Cohen v. California, 403 US 15 (1971). That was the case where a rather foolish young man wore a jacket into a courthouse which had the words "{sexually explicit act word} the draft" on it. The US Supreme Court overturned his conviction on First Amendment grounds. I have not researched it for decades, but I think it is still good law. It sounds like you won't need it for your case, but it might be an additional arrow in your quiver.

Good luck on your case and nice talking to you.

Thanks for the tip. Yes, I looked that up thoroughly (amazing someone would wear that to court--asking for trouble, wasn't he?) as well as the Miller test, which is, of course, the basis for most states laws regarding this matter.

There have also been challenges to the Florida Supreme Court as well as Georgia Supreme Court for similiar bumper stickers. A judge actually overturned lower courts rulings and asserted that a bumper sticker which read the "F-word" as a very, adjective and noun was acceptable and not obscene. The judge actually ruled that the sticker was an 'expression of the drivers opinion of tail gaters", and ruled it acceptable.

Interesting the law says you cannot afix this to your car. What if a guy had been riding in the back of a truck with it written on his shirt or hat? Then is it ok? What if you put the sticker on a piece of wood and it is leaning against the back window?
See how foolish this is?

This small town court is travesty---I've been in it many times and am always anxious to leave. What makes it even more offensive is not just the ticket but the fact he had the gentleman (who is disabled and stands and walks with crutches) who owns the truck stand in the RAIN while he was trying to get his son to school on time and scrape the sticker off his vehicle right then and there. Of course, I have purchased another identical one (plus duplicates, one for him, one for me, and one for the cops new unmarked Charger <--ok maybe not him) and we are going to put them back on IN the parking lot at the courthouse. I also purchased one that reads "THE FIRST AMENDMENT: NOW AVAILABLE IN SOME AREAS". Ok, I wouldn't wear a shirt like the guy did in Cohen, but make a point? You betcha.

The sad thing is this is typical small town politics. He will undoubtely target my friend for things like window tint, tail light out on a trailer if he tows his boat, things like that. I fully intend to address that as well. I told him next time he gets stopped by this gentleman (after court date) insist he call another officer. Tell him you will sit by the side of the road and wait. Another interesting thing---I did some homework and found this officer wrote in excess of 175 tickets in an eight hour shift. I was told he is required to write a certain amount of tickets in order for him to keep the Charger. I emailed the public relations officer at the SCHP and was told in a round about way their writing tickets is a way to prove they are "making good use of the grant money that allows them to have use of the black Chargers".

Needless to say, this incident is becoming a lot larger than just a misdemeanor traffic ticket. I look forward to it with great eagerness. Some times you come into cases that just tweak your interest...........this is one of those for me.

Thanks for your input.

For our original poster, the Indiana Code is back online and I looked up the statutes on use of force as it relates to trespassers. Here it is.

“Indiana Code 35-41-3-2, “Use of force to protect person or property”, provides, in pertinent part:

“(b) A person:
(1) is justified in using reasonable force, including deadly force, against another person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle.
(c) With respect to property other than a dwelling, curtilage, or an occupied motor vehicle, a person is justified in using reasonable force against another person if the person reasonably believes that the force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in the person's possession, lawfully in possession of a member of the person's immediate family, or belonging to a person whose property the person has authority to protect.”

When the statute refers to “curtilage” that usually means the land immediately surrounding a dwelling house. In a city, rather than a country, situation, that probably includes the entire lot.

Now, having said that, again, please don’t get into a use of force situation. As GentleGrace points out, when undefined terms like “reasonable force” are used in the law, they can be interpreted differently by different people and a whole host of problems could result. I know of one neighborhood standoff where the person defending his property was charged with attempted murder. If you were going to think about using force as a self-help remedy at all you should see a local attorney to see if you can find out how the police and local courts view the situation. Besides, you have much better and more civilized remedies.

To GentleGrace re: your First Amendment case. It sounds like you are very well prepared. When I envision what will happen in court I am tempted to use colorful terms to describe it, but that might be interpreted as using at least crude, if not obscene language. So, I will just say that it sounds like you are going to assert your client’s position vigorously. I would like to know how it comes out after the dust settles, if you have time.

I am earnestly looking forward to tomorrows court date.

The law in South Carolina uses, in part, the phrase 'arouses prurient interests' in describing what 'obscene' means. I intend to ask the officer if seeing that bumper sticker aroused his prurient interests. LOL What a great word--'prurient'.......

Unfortunately (or perhaps fortunately??) I suspect that the case will be thrown out as soon as he sees that it will be challenged. My friend isn't a particularly educated man, and physically--well....... wearing his new "Git 'er done" hat is his idea of dressing up. The officer would never expect him to show up to challenge this. The look on his face alone is worth the trip to see it. Fortunately for me, I live an hour away in a rather large city so I have no fear of his targeting me.

I honestly have the highest regard for the men and women who put their lives in harms way for us to be safe and enjoy our freedom. My comments are not meant to reflect poorly on those who protect and serve. I am certain that this officer simply misunderstood the law and had no intent of violating anyone's freedom. But, as they also say in the south, we are having a 'come to Jesus' meeting...... and he's gonna see the LIGHT (smile).

Thanks for the input. I know the poster will benefit from what you have contributed, as have I.