Who Decides Who is Trespassing?

Occupy Madison thought when it found private property, that they could better control the actions of people there, or not wanted there. That’s not what the police are saying, and I think they are wrong . . .

THE LAWS
This seems pretty clear to me.

MGO 23.07
(1) It shall be unlawful for any person to intentionally enter the dwelling of another without the consent of some person lawfully upon the premises, under circumstances tending to create or provoke a breach of the peace.

(2) It shall be unlawful for any person to enter or remain on any property of another or to enter or remain in any building of another after having been notified by the owner or occupant not to enter or remain on such premises.

Sounds to me like the people on the site can determine who is trespassing since they are the “occupant” in (2).

THE POLICY
This new police department website is driving me crazy!!!!! I can’t find what I need!!! Took me forever to find the policy manual. Now that I know where it is I’m fine, but it wasn’t intuitive to me.

This also seems clear to me.

8 – 1100 TRESPASSING
Legislation which applies to the majority of trespass situations is found in both Madison General Ordinance Section 23.07 (Unlawful Trespass on Private Property) and Wisconsin Statute Section 943.14 (Criminal Trespass to Dwelling).

TRESPASS TO DWELLING (WISCONSIN STATUTE, SECTION 943.14)
To arrest for this violation, probable cause must exist to believe that the person involved:
1. intentionally entered the dwelling of another;
2. did so without consent of some person lawfully on the premises, and;
3. did so under circumstances tending to create or provoke a breach of the peace. Officers should arrest the person involved if probable cause exists. The decision to charge under ordinance or as a crime must be reviewed with and receive the approval of the Officer-in-Charge.

DWELLING DEFINED
A dwelling is defined as all residential buildings, including the common halls, porches, passageways, and shared areas of apartments and other residential buildings, as well as individual units w
ithin residential buildings.

UNLAWFUL TRESPASS TO LAND, PROPERTY, BUILDINGS (OTHER THAN DWELLINGS) (CITY ORDINANCE 23.07(2))
In order to be considered in violation, a person must enter or remain on property, building, or land of another, after having been advised by the owner or occupant not to enter or remain on such premises. Officers should thoroughly investigate trespass incidents and be satisfied that they are not being used as “bouncers” or contributing to any discriminatory practices.

NON-DISCRIMINATION
When an individual is asked to leave premises which are held open to the public for business, and it appears that the allegation of trespassing is based on discrimination by the owner, manager, or employee of the establishment, officers will not enforce trespass provisions, but will only take enforcement action in response to behavior which occurs in their presence (e.g., a crime or an aggravated escalating disturbance).

PROCEDURE
In the event an owner/agent or occupant advises an officer that a person is not wanted on the property or premises, and requests that the person be removed, officers should conduct an investigation and do the following:

1. Notice must be given by the owner or legal occupant to the person found trespassing that the person is not legally on the property, is not wanted, and is requested to leave.
2. Verbal or written notice must be given by the owner or legal occupant. (In trespass to land, property or premises situations, a property owner can also provide notice by properly posting the property involved.)
3. An officer may relay a written notice from the owner/legal occupant to the person not legally on the premises. An officer may not relay a verbal notice; verbal notice must be conveyed personally from the owner/legal occupant to the person involved.
4. Unless it is clearly established that prior notice not to reenter was given, the person should be properly advised by the owner/legal occupant; be notified by the officer that failure to leave may result in arrest; and be given the opportunity to leave.
5. If prosecution for violation of City Ordinance 23.07(2) is contemplated, does the owner or occupant want the person arrested? Will the owner/occupant testify?

UNLAWFUL TRESPASS TO PREMISES HELD OPEN TO THE PUBLIC
Taverns and restaurants, although not publicly owned, are licensed by the City and held open to the public, thus they are viewed as a form of public accommodation with greater expectations of access and reasonable use by the public. The public is correspondingly expected to behave reasonably and in a manner which does not inappropriately interfere with, disturb, intimidate, threaten, injure, or otherwise impede the legitimate interests of owners and/or other patrons.

The Unruly Patron Ordinance should be used when arrests a
re made on licensed premises. officers should order unruly patrons out for three months following a City Ordinance arrest and six months following an arrest for a state crime. A record of enforcement will be completed and maintained in the Dispatch Center. When investigating incidents at liquor-licensed or other establishments held open to the public, officers must obtain information. If the circumstances meet the guidelines identified in the above Procedure section, the officer(s) should establish control of the immediate situation, insure that the person receives proper notice not to enter or remain on the premises and take whatever action becomes necessary thereafter.

Sounds like the legal occupants – people there with the permission of the owner – can make the call.

THE POLICE DEPARTMENT VERSION
I wanted to post some “no trespassing signs” but it does appear the owner has to. The owner asked me to, so I think we are good there, but then I ran into issues . . . .

I ask this:

We want to put up no trespassing signs so that we can get rid of unwanted people – do you have a specific format you want? There are also concerns from people at camp, just like at Lake View Hill, there are neighbors who are video taping them, is there anything we can do about that now that we are on private property?

The answer:

Brenda – Mr Vang is free to post trespassing signage if he so desires, but the campers lack legal standing to invoke property rights so cannot do so. Please work with Mr Vang for that request.

There is little we can do to prevent people from video-taping. As long as the person doing this is in a place they have a legal right to be, and those being taped are in public view, the action of the person doing the videotaping is legal, and the person whose action is being recorded has no reasonable expectation of privacy. This is an unfortunate consequence of having to camp so close to the roadway in order to find dry, level ground….

So I say

Mr. Vang wanted me to post the signs. I’m trying to do the leg work for him.

I get this response

Have him call Lt Radovan at 245-3652. He will need to sign a form letter, and we will provide him with the signs….

What? The law and the policies say no such thing, where is this coming from? I of course, ask more questions of an officer on the site and later a supervisor. I am real curious now about these interpretations and the rights of tenants, for my day job. So now I am asking for two reasons. But, back to the Portage Rd. issue, I get this explanation as well.

The easier part to explain is with respect to posting signage. Our MPD procedure requires that the property owner /manager request MPD enforcement of trespassing in the landlords absence as the prelude to posting of signs. The city signs signal to all officers that the owner of the property has requested we investigate those who appear to be on the premises without permission and to cite those who are found to be trespassing. This is a higher standard than is required for a face-to-face discussion where a tenant is complaining about another person on the premises refusing to leave. In those cases, we can take the word of a tenant. The extent to which a short-term guest exercises such control over the property as to invoke trespassing could be subject to debate and interpretation, and the final decision would likely be made based upon the conduct of the unauthorized person rather than on the legal standing of the complainant.

I know they have the guns and uniforms, but this sounds wonky to me. Where are they getting these requirements from and rules from? I swear it is not what the law and policy says, so I keep asking questions and I get my most hated answer of all . . .

I am happy to help answer questions, so if you have them, please just call. If it is documents you want, rather than information, you will need to make an open records request. Only the Custodian of Records is permitted to make record releases. I am copying her so that she is aware you may make a request.

Wait, what? No, I’m just trying to make sure that we are giving landlords good information at the Tenant Resource Center and trying to solve an immediate issue with Portage Rd. On TRC, they are looking for anything in writing they give landlords so we can give them the right answers – no need for an open records request. On Portage Rd – radio silence.

Finally, I hate it when they say call. I do have a day job and this isn’t part of it, so to call, I need to take time off, leave the office and call – which I don’t have time for at work. Not this week or last. And I have little (1 day) to no vacation left. Plus, call – what are they afraid of? Why wanting to do that? Sigh . . . usually it is a sign of something to hide in government speak, so there is no open records to request. I must be asking something they don’t want to answer on the record.

Note: I didn’t say who I was corresponding with because I have had a good relationship with the person up to the move to Portage Rd, now it is clear there are different orders than at Lake View Hill. Bummer, as I have been saying such nice things about the police department up to this point . . . well, and up to the point where they randomly checked my plates and pulled me over. (Turns out, they did me a favor, I had no idea I had an unpaid $10 seat belt ticket and we driving around with a suspended driver’s license for 10 months – put that doesn’t excuse the targeting.)