Trespass

[fried1765]

1) I'm surprised the Sheriff said you could not press charges for trespass. I thought if it was your property, you can trespass anyone you want.
2) I live Massachusetts (aka Liberal sh!thole). Sadly, I can count a few different instances there in your story where the trespasser would be pressing charges on you and the Sheriff would have you in cuffs.

I know of what you speak.
Democratic People's Republic of Taxachusetts!

 

[PaulR]

I know of what you speak.
Democratic People's Republic of Taxachusetts!

Eastham eh?
You must know the Savin family?
Pat is a friend of mine, good guy. (or, Hey Pat! is that you?, lol)

 

[Flintknapper]

1) I'm surprised the Sheriff said you could not press charges for trespass. I thought if it was your property, you can trespass anyone you want.

Varies State to State. In the OP's case (Texas Law applies).

You can verbally 'tresspass' anyone you like on your own property or property under your control (as acting agent). But for Criminal Trespass to occur (actionable offense per the law)....the property must be marked/posted or the individual previously warned or the trespasser is armed.

Sans any/all of the above it is simple trespass and the person may be asked/made to leave. After being 'trespassed' if they were to return it would be Criminal Trespass in Texas.

 

[North Idaho Wolfman]

Trespassing is a slippery slope!

Especially when that slope is covered in ice!

 

[Flintknapper]

In this part of the woods - if a gun is pointed to, as in on the hip or otherwise - one can be charged with the ol "brandishing a firearm" HERE is the VA law - " criminal offense to point, hold or brandish a firearm in such manner as to reasonably induce fear in the mind of another "

In Texas (where the OP's incident occurred) there is no Brandishing' law. We have Assault, Aggravated Assault and Deadly Conduct to cover things.

We are an Open Carry State (since 2021) so simply displaying a firearm (especially on one's own property) is not a problem. However you can not threaten or imply a threat of deadly force Unless you would be justified in the actual use of deadly force under the law.

Depending on circumstance....Law Enforcement might exercise a lot leniency/discretion in the application of that law.

 

[rc51stierhoff]

The only comment I have is the "brandishing" of a weapon for the purpose of intimidation. Montana is a very gun friendly state, but showing a firearm with the intent to intimidate or threaten is a felony up here, but perhaps not in Texas.

We have millions of acres of public land in Montana with plenty of access to rivers and lakes but there is an ongoing problem with poaching and particularly trespassing during hunting season. I had a guy on a 4-wheeler driving around my property and my neighbor's a few years ago. When I approached him and asked him what he was doing the situation rapidly deteriorated. I was armed with a revolver in a holster that he couldn't see, but ultimately he came at me with the 4-wheeler so I knocked him off it and he ended up face planting in a ditch by the driveway. He lay there for a minute groaning as I was calling 911 to report his attempted assault and my necessary defense.

I told him to leave my property and headed back to the house still on the phone with dispatch. It took him 10 minutes or more before he got back on the 4-wheeler and headed down the driveway. 20 minutes later he was back in a purple PT Cruiser with a woman driving. They stopped at the turn which is 175 yards from my kitchen window. They both got out and opened the rear hatch. At this point I opened one of the kitchen windows, got a rifle set up and dialed 911 again. I told dispatch that if either of them presented a weapon that I would do whatever was necessary to defend myself. A sheriff was supposedly on the way.

The couple might have seen me or not, but they got back in the car, turned around and left. I received a call from a Sheriff about an hour later asking me if I needed help and if I had No Trespassing signs posted. I never did see a Sheriff.

A few months later I was going door to door in the area trying to organize a dust control program since the county pays 50% of dust control for sections of road longer than 1/2 mile. I knocked on the door of a trailer and a rough woman answered. At first she was interested in the program but asked me where I lived. I pointed to my place and then she went ballistic. She told me that I'd killed her husband since he passed away a little over a month after our altercation. I told her that he was trespassing and that he'd attacked me and I defended myself. She told me to get the #@$% off her property so I backed away keeping my eyes on her and my hand behind me and close to the revolver I always carry.

I am sort of flatlander / hill Billy from Gods country, yep that’s right O H I O…I thought the serious ranchers in Montana take ‘em to the train station …at least that is what RIP does…

 

[JimmyJazz]

About 3 years ago some long-haired young man about 30 pulled up outside our security gate as we were heading to town…he was driving a little Ford Ranger PU with Arkansas plates and a kayak on top….(we have about 1500 acres on the river) and asked how to get to the river. He was told “this is private land and you cannot use it to get to the river” He said that in AR the river is public. I pointed out the river is public but this is NOT Arkansas and my property is not for public travel..…and we went on to town. The security gate closed behind us.
A couple hrs later we returned and put the groceries away. UPS had delivered a pkg and left it on our doorstep.

Late at night the dog was barking and we found a storage-shed broken into and about 75-feet of 4-ga. electrical cable pulled-out and strung across the grass.
Next day the long-hair shows up at our door and wants to know if I have a tractor to pull him out of the river. He’d gotten his pickup stuck in the sandy shoreline. He was on our property (we’re deeded out to the channel of the river.)
How did he get there? When UPS used the delivery instructions to drop off the pkg…he simply followed them thur our security-gate, drove across our property to the river and got stuck.
It was HE who broke into our shed looking for a rope/cable/or chain to try to extricate his truck!! (What an idiot! thinking he might use electrical cable to pull a truck out of deep sand…. AND breaking into my shed. The dog had scared him off and he’d spent the nite in his truck.)

I called the sherriff …. who informed me that since UPS had opened the gate to allow him into our property he could not be charged with trespass….Yet…. but that after I had warned him to “get off” the property he has 24 hrs to get his stuck-truck off the property or I could place a claim upon it and charge him with trespass if he’s still standing on the property.
Idiot wants to know if it’s “OK” with me if he calls a buddy who has a wrecker to come out of town and pull him out. (Sherriff points out privately to me that if I give permission for him to bring a friend onto the property that would provide him a defense to trespassing and that any damage to the property by the wrecker and truck would have been by my permission.)

I told the idiot that he could either call a commercial wrecker service….not a friend… or I’d make charges against him tomorrow. Meanwhile, the river-authority now gets involved (they share radios with the sherriff) and they say that any damage to the water quality when that truck leaks or is submerged will be the fault of the owner…..or…the possessor if I put a lien on the truck…. and they plan to open floodgates on the upstream dam in 3 days.

I take my tractor down to the river and pull Idiot out of the sand and tell him to follow me to the gate. (I wanted to open the gate for his exit instead of him seeing the code…AND I wanted to take him to the gate via a particular route to prevent him seeing certain assets I have on the property.)

We got to the gate, I opened it, and he stuck his hand out the window in an attempt to shake-hands with me. I pulled my pistol out of my pocket, keeping it pointed at the ground but providing a good reason my hand was not empty to be giving a hand-shake…. and said, “Look Bud! We’re not friends. We’re not going to BE friends. And if you are ever on my side of this gate again I will not be bothering the sherriff. You’ve got about 30 more seconds before this gate automatically closes. Capiche?”

He has not been back.

I just finished reading the book titled Me and Paul written by Willie Nelson. Paul English was his best friend , "strong arm" and often drummer for 65 years. The two most important things needed according to Paul in order to get certain jobs done (like being payed usually) are an attitude and a pistol. Worth reading if you like Willie. I do like your story. Thanks.

 

[rc51stierhoff]

About 3 years ago some long-haired young man about 30 pulled up outside our security gate as we were heading to town…he was driving a little Ford Ranger PU with Arkansas plates and a kayak on top….(we have about 1500 acres on the river) and asked how to get to the river. He was told “this is private land and you cannot use it to get to the river” He said that in AR the river is public. I pointed out the river is public but this is NOT Arkansas and my property is not for public travel..…and we went on to town. The security gate closed behind us.
A couple hrs later we returned and put the groceries away. UPS had delivered a pkg and left it on our doorstep.

Late at night the dog was barking and we found a storage-shed broken into and about 75-feet of 4-ga. electrical cable pulled-out and strung across the grass.
Next day the long-hair shows up at our door and wants to know if I have a tractor to pull him out of the river. He’d gotten his pickup stuck in the sandy shoreline. He was on our property (we’re deeded out to the channel of the river.)
How did he get there? When UPS used the delivery instructions to drop off the pkg…he simply followed them thur our security-gate, drove across our property to the river and got stuck.
It was HE who broke into our shed looking for a rope/cable/or chain to try to extricate his truck!! (What an idiot! thinking he might use electrical cable to pull a truck out of deep sand…. AND breaking into my shed. The dog had scared him off and he’d spent the nite in his truck.)

I called the sherriff …. who informed me that since UPS had opened the gate to allow him into our property he could not be charged with trespass….Yet…. but that after I had warned him to “get off” the property he has 24 hrs to get his stuck-truck off the property or I could place a claim upon it and charge him with trespass if he’s still standing on the property.
Idiot wants to know if it’s “OK” with me if he calls a buddy who has a wrecker to come out of town and pull him out. (Sherriff points out privately to me that if I give permission for him to bring a friend onto the property that would provide him a defense to trespassing and that any damage to the property by the wrecker and truck would have been by my permission.)

I told the idiot that he could either call a commercial wrecker service….not a friend… or I’d make charges against him tomorrow. Meanwhile, the river-authority now gets involved (they share radios with the sherriff) and they say that any damage to the water quality when that truck leaks or is submerged will be the fault of the owner…..or…the possessor if I put a lien on the truck…. and they plan to open floodgates on the upstream dam in 3 days.

I take my tractor down to the river and pull Idiot out of the sand and tell him to follow me to the gate. (I wanted to open the gate for his exit instead of him seeing the code…AND I wanted to take him to the gate via a particular route to prevent him seeing certain assets I have on the property.)

We got to the gate, I opened it, and he stuck his hand out the window in an attempt to shake-hands with me. I pulled my pistol out of my pocket, keeping it pointed at the ground but providing a good reason my hand was not empty to be giving a hand-shake…. and said, “Look Bud! We’re not friends. We’re not going to BE friends. And if you are ever on my side of this gate again I will not be bothering the sherriff. You’ve got about 30 more seconds before this gate automatically closes. Capiche?”

He has not been back.

I don’t know if it is different by state but I own a section of river in OHIO (yes that’s right Gods country…my family is from Texas and I know the difference)to the mid point on the river (under) on the ground…my understanding from ODNR is that waters being navigable by floating is public, but feet on the ground (ie wading) is trespassing and requires permission to put feet or tires on the river bed…floating (navigable is the term here) by on the water is consider public use.

 

[Mark_BX25D]

The only comment I have is the "brandishing" of a weapon for the purpose of intimidation. Montana is a very gun friendly state, but showing a firearm with the intent to intimidate or threaten is a felony up here, but perhaps not in Texas.

I think you'd be hard pressed to find a state in which displaying a weapon in a threatening manner is NOT a crime.

In Texas (where the OP's incident occurred) there is no Brandishing' law. We have Assault, Aggravated Assault and Deadly Conduct to cover things.

We are an Open Carry State (since 2021) so simply displaying a firearm (especially on one's own property) is not a problem. However you can not threaten or imply a threat of deadly force Unless you would be justified in the actual use of deadly force under the law.

It's not called "brandishing", it's called, "DISORDERLY CONDUCT", and it will still get you in trouble with the law no matter what label is attached to it.

PENAL CODE

TITLE 9. OFFENSES AGAINST PUBLIC ORDER AND DECENCY

CHAPTER 42. DISORDERLY CONDUCT AND RELATED OFFENSES

Sec. 42.01. DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:

(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;

Depending on circumstance....Law Enforcement might exercise a lot leniency/discretion in the application of that law.

Yes indeed, but it's foolish to count on that when guessing wrong can ruin your life.

As for the sherriffs’ actions and opinion: It is not uncommon for law enforcement officers to not know the details of law. If it’s not a violent action which needs immediate suppression… a LEO may prefer to “tamp down” the emotions and seek amicable solutions than to make arrests amid questionable prosecution issues.

Yes, there are two common misconceptions about law enforcement officers:

1. They know the law.
2. They know guns.

They are often not very good at either.

 

[RCW]

The OP has been very active on OTT since 2018. The alleged incident occurred “3 years ago,” or 2020.

Kind of surprised the event wasn’t brought up before….serious stuff.

No issue with the “story” or the response. Certainly has elicited some responses here on OTT …..

 

[Fordtech86]

Certainly has elicited some responses

 

[GeoHorn]

I do have “POSTED” AND “NO TRESSPASSING” AND “PRIVATE PROPERTY” signs on the entrance gate to my property.
To be completely honest i would not normally display a firearm whatsoever unless I intended to use it. (Ordinarily, if someone were to see my firearm during a confrontation they would likely also see the muzzle-flash.)

This character was so Brazen I felt he needed to have a memorable event so as to permanently modify his behavior on my land.
I do not believe I “brandished” my pistol in any threatening manner, and there was no other witness to the encounter at the gate. (My pocket had a hole in it and the pistol was almost ready to “fall thru”…so I had to remove it from the pocket to prevent its’ falling dangerously to the ground..?)

Seriously tho’., I kept the handgun pointed at the ground. My purpose was not to threaten him in the moment, but to illustrate to him that I am equipped and capable of deadly force on my own property if he repeats his performance. (I am also ”LTC” , licensed to carry, and have a minor education / participation / background in law enforcement.)

Even in CA the law is specific about “brandishment”:
Brandishing a firearm or weapon is a crime which is prosecuted under penal code 417.

However, merely taking out a weapon to display or show off is not a crime so long as you did not do so in an angry or threatening way.

In Texas:
PENAL CODE CHAPTER 46. WEAPONS
https://statutes.capitol.texas.gov › htm › PE.46.htm


(a-5) A person commits an offense if the person carries a handgun and intentionally displays the handgun in plain view of another person in a public place

Dallas Unlawfully Brandishing a Weapon Attorneys

If you have been charged with unlawfully brandishing or discharging a weapon in the Dallas area, contact Law Offices of Mark T. Lassiter at (214) 845-7007 for help mounting a strategic defense.

www.lomtl.com

And… He did really need a haircut.

(I have edited this several times as i researched the brandishment issue)

 

[beerguzzlingslob]

“You can go a long way with a smile. You can go a lot farther with a smile and a gun.” AL Capone

 

[Flintknapper]

I do have “POSTED” AND “NO TRESSPASSING” AND “PRIVATE PROPERTY” signs on the entrance gate to my property.
To be completely honest i would not normally display a firearm whatsoever unless I intended to use it. (Ordinarily, if someone were to see my firearm during a confrontation they would likely also see the muzzle-flash.)

This character was so Brazen I felt he needed to have a memorable event so as to permanently modify his behavior on my land.
I do not believe I “brandished” my pistol in any threatening manner, and there was no other witness to the encounter at the gate. (My pocket had a hole in it and the pistol was almost ready to “fall thru”…so I had to remove it from the pocket to prevent its’ falling dangerously to the ground..?)

Seriously tho’., I kept the handgun pointed at the ground. My purpose was not to threaten him in the moment, but to illustrate to him that I am equipped and capable of deadly force on my own property if he repeats his performance. (I am also ”LTC” , licensed to carry, and have a minor education / participation / background in law enforcement.)

Even in CA the law is specific about “brandishment”:
Brandishing a firearm or weapon is a crime which is prosecuted under penal code 417.

However, merely taking out a weapon to display or show off is not a crime so long as you did not do so in an angry or threatening way.

In Texas:
PENAL CODE CHAPTER 46. WEAPONS
https://statutes.capitol.texas.gov › htm › PE.46.htm


(a-5) A person commits an offense if the person carries a handgun and intentionally displays the handgun in plain view of another person in a public place

Dallas Unlawfully Brandishing a Weapon Attorneys

If you have been charged with unlawfully brandishing or discharging a weapon in the Dallas area, contact Law Offices of Mark T. Lassiter at (214) 845-7007 for help mounting a strategic defense.

www.lomtl.com

And… He did really need a haircut.

(I have edited this several times as i researched the brandishment issue)

You'll find there is no 'brandishing law' in Texas *using that language*

Also, Texas is an Open Carry State....so by default the weapon would be in 'plain view' and being in a public place has nothing to do with it if not disallowed by law (restricted place or signage).

 

[GeoHorn]

You'll find there is no 'brandishing law' in Texas *using that language*

Also, Texas is an Open Carry State....so by default the weapon would be in 'plain view' and being in a public place has nothing to do with it if not disallowed by law (restricted place or signage).

I’m not a lawyer … so I quoted a Texas Law Firms’ explanation of “brandishing” in Texas… which uses wording such as “display” in lieu of “brandish”….but the meaning and intent is the same.
Open carry requires the handgun to be carried in a specific manner …(in a holster for example.)
Pulling that handgun out of its holster in a public place is equivalent to “brandishing” in other locales.

From https://www.austintexas.gov/page/display-restrictions : “Penal Code 46.02 is amended to make it lawful for most people aged 21 or older to display a handgun if it is carried in a holster. A person removing their handgun from its holster in public may be guilty of a crime under 46.02(a-1) or (a5). …”

 

[Flintknapper]

I’m not a lawyer … so I quoted a Texas Law Firms’ explanation of “brandishing” in Texas… which uses wording such as “display” in lieu of “brandish”….but the meaning and intent is the same.
Open carry requires the handgun to be carried in a specific manner …(in a holster for example.)
Pulling that handgun out of its holster in a public place is equivalent to “brandishing” in other locales.

From https://www.austintexas.gov/page/display-restrictions : “Penal Code 46.02 is amended to make it lawful for most people aged 21 or older to display a handgun if it is carried in a holster. A person removing their handgun from its holster in public may be guilty of a crime under 46.02(a-1) or (a5). …”

• Display a deadly weapon or firearm in a public place with the intent to alarm
  • Abuse or threaten a person in a public place in an obviously offensive manner

 

[GeoHorn]

• Display a deadly weapon or firearm in a public place with the intent to alarm
  • Abuse or threaten a person in a public place in an obviously offensive manner

What are you saying? That there’s no way you can commit an offense equivalent to “brandishment” in Texas...?? … or that in my story that I committed such an offense..?

If the latter:
It’s difficult to prove intent.
And I was not in a public place.

If the former:
Texas doesn’t use the same word for the same offense,…but it’s still an offense under the described conditions.

And:
Why does a post made on these forums so commonly result in a personal dispute?

Lastly:
If one brandishes a weapon in a public place in Texas…. one will likely end up severely penalized either way.

 

[Flintknapper]

What are you saying? That there’s no way you can commit an offense equivalent to “brandishment” in Texas...??
No....just correcting the nomenclature....as it very often applied and misused in Texas. Brandishing laws in other States have very certain meanings and penalties.

Texas specifically does not use the word and instead allows 'Disorderly Conduct' (most often) to handle situations that might constitute the need.

Yes, it amounts to the same thing (if convicted) BUT how you arrive there and what is required can be very different, one of the reasons Texas chose NOT to follow others States sometimes narrow definition of brandishing.

… or that in my story that I committed such an offense..?

We don't know your 'intent' at the time (fully), but IMO it reads like a bit of bravado mixed with a 'warning' to the 'Long Hair' who didn't seem able to comprehend our private property laws.

If the latter:
It’s difficult to prove intent.
And I was not in a public place.

Agreed. Unfortunately it might take a court case in front of a Judge and Jury to decide that. IF it were determined your action(s) of displaying a firearm was 'provocation' by the jury, then your justification for Self Defense (if came to that) just flew out the window.

Of Course, you can avail yourself of the Castle Doctrine (already enacted at that time) but that still requires any force (or threat of force) to be proportionate to the threat.

My advice, for its worth....is to keep your firearm out of sight until needed, or holstered if Open Carrying and remember that the 'Threat of deadly force" is only legal when the 'USE' of deadly force would be justified. Public or Private setting.

If the former:
Texas doesn’t use the same word for the same offense,…but it’s still an offense under the described conditions.
Yes, I addressed earlier and expanded on why we (Texas) don't use the term.

And:
Why does a post made on these forums so commonly result in a personal dispute?

I don't see that here. Perhaps, its being misinterpreted....IDK?

Lastly:
If one brandishes a weapon in a public place in Texas…. one will likely end up severely penalized either way.

Actually, it depends a lot of circumstance. But yes, there are penalties and it is something to avoid.

^^^^^^

Expand for replies.

 

[D2Cat]

Sometimes when a horse (or a dog) get focused on something and their brain is deciding whether to run or attack it's best for the rider or owner of the dog to redirect it's focus.

Flintknapper, how much HP does your tractor have? What you're most used implement?

 

[Flintknapper]

Sometimes when a horse (or a dog) get focused on something and their brain is deciding whether to run or attack it's best for the rider or owner of the dog to redirect it's focus.

Flintknapper, how much HP does your tractor have? What you're most used implement?

25 hp and 20.5 estimated PTO horsepower, so I am limited as to how I can use it.

Front End Loader is by far.... used more than anything else I have.

I use my Rotary Cutter, Box Blade and Grader Blade about equally. Disc Harrow only a few times a year to make food plots for wildlife.

Few other implements that mostly sit around.

Father-in-Law lives not too far away on the same FM road as we do. He has a Backhoe I can borrow in case of Trespassers. oooops.