14 August 2008

Is it lawbreaking or violating rights?

The video below has been bandied about as something which can be seen subjectively, either as police or the man videotaping acting improperly.

After they have removed him from the building:
"This is private property. You were advised not to come into the building. This is private property. You come back into the building you will be arrested for trespassing. You understand that?"
. . .
"It's Private Property. You are not invited. You are not a part of the official(? word garbled) press. So you are not invited."
Here's the statutory law on trespass in Washington:
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.

RCW 9A.52.090 - Criminal trespass — Defenses.

In any prosecution under RCW 9A.52.070 and 9A.52.080, it is a defense that:

(1) A building involved in an offense under RCW 9A.52.070 was abandoned; or

(2) The premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or

(3) The actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him to enter or remain; or

(4) The actor was attempting to serve legal process which includes any document required or allowed to be served upon persons or property, by any statute, rule, ordinance, regulation, or court order, excluding delivery by the mails of the United States. This defense applies only if the actor did not enter into a private residence or other building not open to the public and the entry onto the premises was reasonable and necessary for service of the legal process.
Now, I'm not certain how Washington decides what a 1st or 2d degree trespass is, but I'm going to assume it's "knowing" and "unlawful" to enter private property after having been told that you are forbidden to do so.

That leaves the enumerated defenses. (1)The building wasn't abandoned. (3) The actor was forbidden to enter, so he didn't have a reasonable belief that the owner would license him to enter. (4) He wasn't serving legal process.

That leaves the 2d excuse. There's a colorable argument that the building was "open to the public" with a political function being filmed by the press. As well, there were people present who were not members of the media or the Seattle Police Officer's Guild (notice the boy on the right). However, the police officer's statements seem to indicate the media was invited and I'd bet dollars to doughnuts the boy was invited by an officer.

The most likely reality here is that the man was trespassing. There are some things which might contradict this and show that the Guild's building was "open to the public." In example, an invitation for the public to attend via flyers or the internet would be evidence that the meeting was public. Per the statute, there does not seem to be an allowance for parties to forbid entry once a place becomes "open to the public." However, I suspect that this has probably had some pretty tight reins put on it by case law, because under the theory as I've laid it out if someone were coming in twice a week, to Wal*Mart and stealing $5 worth of merchandise each time, the store could never bar him from the premises. Maybe someone more familiar with Washington law can fill in the gaps?

Finally, I want to comment some on the encounter itself. By about half way through it, I wanted to clock the kid myself. What that kid is doing is offering passive resistance and playing for the camera. Saying "I'm not doing anything" a hundred times does not mean that he's not trespassing. He also appears to be refusing to leave, despite being told he's not allowed on the property more than once. To top it all off, when the officer called to the scene walks down the street to talk to the complainant (off duty officer) and the kid follows right behind them filming it crosses over into harrassment. Please note, I didn't say he broke the law; people are obnoxious all the time without breaking the law. This kid is doing what we're all starting to see over and over in the age of YouTube, he is doing his best to provoke in a manner which will allow him to claim innocence.

As for the police officers, I don't think they handled the situation well either. Not because they went overboard, but because they tried to handle it in what I'll call a "middle-way." They were faced with a number of ways to handle this and they tried to talk it down. Personally, if I'm in an encounter with police I'd prefer that they use this method. However, in this case talking it down just plays to what the kid is trying to do; he gets a wonderful little thing to put up on YouTube. There were two ways to handle this better (if we solely look toward the possibility of YouTube publication). One would have been to ignore the kid and let him film. Of course, that's not the natural reaction of an officer who has given a warning and is seeing someone blatantly ignoring it and breaking the law. As well, I don't know if this kid might have a record of doing harassing things to the candidate, ala Mike Stark (doubtful, but possible). The other would be to grab the kid, hustle him outside - as they did - and immediately arrest him, taking the camera and turning off the video right after stating "You are under arrest for trespassing after having been given notice not to come on this property" or something similar. It would have devalued the film and probably made it too short to be very interesting. They had probable cause and a whole bunch of credible witnesses to the trespassing; I'm pretty sure the charge would have stuck. But, hey, they tried not to be too big of jerks and consequently gave the kid his day on You Tube.


Anonymous said...

I think you may have been working on the prosecution side long enough to forget your roots.
This kid didnt commit a crime. As far as I can see he is filming a press conference. I fail to see what the kid did to provoke being kicked out of that conference.
The officers at this press conference assumed that this guy was up to no good. If they just let him film nothing would have happened. Did I miss something in this video?

Ken Lammers said...

As I stated above, outside of what I read in the statutes, I don't know the specifics of Washington law, but in Virginia you are breaking the law by trespassing if you enter upon property after having specifically forbidden to do so.

You're probably right that nothing would have happened if they had just let him film. The odds are the kid was just shadowing the candidate to see if he would make mistakes on his own rather than planning to instigate (IDK). However, that does not mean the kid was not breaking the law. He purposefully broke the law by trespassing. When you do that in a building full of police you are almost literally bearding the lion in his own den.

The fact that the press were there does not automatically open the event to the public. If the Guild invited specific people, or groups of people, into its building does not mean that other persons can ignore a specific prohibition from entering the premises.

If there is a specific law - and perhaps there ought to be - which states that if press are invited the event must be open to the general public (as long as fire codes are followed and people are not actively disruptive) the kid's okay, but if not he's clearly breaking the law.

Ken Lammers said...

Mind you, there are times when people should stand up and, if needs must, break the law in order to stand up to greater evil.

However, opposition research in a local campaign just ain't one of those times.

Joel Rosenberg said...

For that latter, sure.

But I'm not sure that the cops would be all that smart to do the arrest and turn off the camera routine. They'll be able to get away with that a few times, but when the van across the street has the backup a camera in it . . . or the body mike that they didn't spot is broadcasting . . .

Anonymous said...

Hey Ken,
Sorry I did not see this sooner, or else I would have commented previously. Washington trespass law is relatively straightforward. First degree trespassing is when someone trespasses in a building. Second degree encompasses everything else that are not buildings. If you have been given adequate notice that you are not allowed on the property, then you are trespassing, unless you can show that you met the criteria of one or more or the four defenses listed. In my practice, defendants most often try the "reasonable belief" defense, wherein they argue that they "reasonably" thought they had permission to be on the property. However, if notice has been adequately given, that defense fails pretty much every time.

To use your Wal*Mart example, the Wal*Mart out here in my jurisdiction has a policy to notify anyone caught shoplifting both verbally and in writing that they are no longer allowed on Wal*Mart property (which I think is a company-wide policy, but I am not sure). If that person is subsequently caught on Wal*Mart property, we charge them with Criminal Trespass. If they are caught in the store, we charge first degree. If they are caught in the parking lot, we charge second degree.

Now, as for my analysis of the case in the video, here are my two cents. That kid broke the law a couple of different ways. Were I the prosecutor handling the incident, I would charge him with Criminal Trespass First Degree, and I would charge him with Obstructing a Law Enforcement Officer. Frankly, had the incident not occurred at a police event in front of a bunch of police officers, I might even be tempted to charge him with Disorderly Conduct. Here is why:

1.) He was given repeated notice that the event was private invitation only for media, and not the general public.

2.) He was repeatedly asked to leave the premises and failed to comply. It does not matter why he was asked to leave in this particular case, since, as previously stated, the event was not open to the public.

3.) Even after he was removed forcibly from the premises, he continued to be disruptive. He was clearly ignoring a police officer's direct order to step away while the officer conducted a witness interview. Just because it happens to be a "public sidewalk," that does not give one free reign to stick a camera in an officer's face and give him grief while he is trying to do his job.

As for the police officers' response, while they did not do anything technically inappropriate, they very easily could have handled the situation better. In the Seattle PD's defense, however, I can understand why they handled this incident the way they did. Ever since the WTO riots (Battle in Seattle) in 1999, the Seattle PD has come under constant fire for allegations of "harassment" and "police brutality." Some of these allegations are legitimate, and some are not. Regardless, they have been heavily scrutinized by the public in recent years, and it honestly would not surprise me if that has effected their standard operating procedure in significant ways. Even still, I can think of many ways they could have handled that situation better.

Hope that helps!