Law: Trespassing
DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.
Rights in Private Property
Everyone has the right to set down the conditions on which they are willing to allow others to enter onto their property. A property owner is entitled to prohibit photography on his property, or to restrict it, for example by allowing for non-commercial use only. A person who takes photographs in contravention of the conditions becomes a trespasser and could be sued.
— iStockphoto
Trespassing is the act of being on property without permission from the owner or lessee. Note that this is about where you are, not what you’re doing — trespassing is legally separate from photography. You can be illegally trespassing and still be legally taking photographs.
What actually constitutes illegal trespassing differs by jurisdiction. All a property owner can do is ask you to leave and escort you off the property; they can’t stop you from taking photographs or seize your equipment or hold you.
If you are at a mall, shop, hotel, restaurant, park or other place where the public is normally allowed, you are not immediately trespassing. Permission to enter is assumed. However, that permission can be revoked. At the moment that a security guard (or other agent of the owner or lessee) demands that you leave, then you are trespassing and you should leave. If you do leave, you cannot be prosecuted as you are complying with the change in status. If you do not leave, they have to call a law enforcement person to arrest you. The mall can say that you are banned, in which case future entry will be trespassing.
Property owners and security guards are restricted in what they can do. They can only use reasonable force to remove you. If you are not posing an immediate threat, they cannot use force and their only recourse is to call a law enforement officer. They cannot arrest or hold you (except at U.S. railroads). And they can’t do anything if you are on, or when you get to, public property and rights-of-way. Thus, you can stand on a public street and photograph.
Can You Be Prosecuted?
It depends upon where you are as different places have different statutes.
In California for example, your mere presence on land which is open to the public is not illegal — you must also have “the intention of interfering, obstructing or injuring” people or business activity to be illegally trespassing (CA penal code 602j). If you’re on land not open to the public (other than a dwelling), It’s not illegal unless you refuse or fail to leave “when requested to do so” (CA penal code 602n). You can only be arrested by the police after they’ve received a signed “Trespass Arrest Authorization letter.”
In California, trespassing (first offence) is a misdemeanor (minor crime). In England and Wales, trespassing is not a criminal offence, just a civil wrong.
No Photography Signs
Property owners can differentiate upon usage, for example, if they post a “No Photography” sign, you can legally go on the property but as soon as you start taking photographs you”d be trespassing.
You are wrong on the law in California. PC 837 outlines the definition of private arrest. If a person has committed PC 602 (criminal trespass) by failing to leave when asked to do so, a private arrest for this misdemeanor is lawful. Reasonable force may be used to carry out a private arrest. Mall security in particular is well versed on the law of private arrest and will do it. In general, a security guard who carries handcuffs has been trained and authorized by their employer to make a private arrest.
You may find http://www.bsis.ca.gov/ particularly interesting, as this is the agency which regulates security guards, both contract and proprietary.
It is absolutely true that private security (exception: contract security on military installations) may not seize personal property, delete photos, etc. Typically they call the police, and ask the police to document the incident. This makes the names of the people they are dealing with available. Then the company legal department can follow up with a restraining order, injunction, lawsuit for damages, etc.
Hi Andrew:
Excellent point. Thanks for the information. I will update my text accordingly soon.
Thank you for taking the time to help.
Andrew
I’m having difficulty deciding whether the following represents trespassing and you two who have posted seem to have a good idea–I own a condo and the resident in the unit underneath me (an older man I suspect of suffering from early dementia) has been coming up my stairwell, leaning over my gate at the top of the stairwell and thrusting a camera over the gate to take pictures of my balcony (which has an open view of my living room through the sliding glass door–his reason for doing so was that he insisted I was the cause of a leak he was experiencing but it was revealed to be an HOA responsibility and not mine). I grew so tired of the harassment I installed a security camera and actually caught the guy on video doing this.
My question–can I have this guy arrested for trespassing? I don’t want to have him arrested, but I would like to be able to definitively state I could have him arrested which I hope would end the harassment. Any thoughts? Many thanks!
Hi Erik:
That’s a good question. I don’t know, and I’m not a lawyer. That does not sound like trespassing as he is standing on communal property. But maybe you could halt him on the grounds of harassment or invasion of privacy. Maybe getting the HOA to fix the leak would fix the problem!
Andrew