Trespassing laws are one of the most important legal concepts, and US trespassing laws are no exception.
Everyone who owns property instinctively wants to maintain control of it, and expects the explicit right to keep unauthorized people off of it.
And even though there is no truly unified trespassing law throughout the United States, the common law basics are mostly fundamental and don’t change.
Though you’ll need to learn, understand and abide by the trespassing laws of the state you live in, you’ll be a lot better off if you understand the foundational elements.
Keep reading, and I’ll give you a good overview of trespassing laws in the USA…
Table of Contents
What is Trespassing, Legally Speaking?
Trespassing, as a legal term, has more connotations than you might think, but for the purposes of our discussion today trespassing refers to the common understanding.
That common understanding generally implies entering onto land or any other property without the legal consent of the owner.
Trespassing might mean illegally entering or traveling across a piece of land, remaining in or on land or within a structure or dwelling, or accessing any other property after permission has been revoked or denied.
In some cases it even refers to entering or remaining unlawfully in a vehicle or some temporary habitation.
All of these things can be considered trespassing, though there may be slight variations on those situations, legally speaking, depending on the state that you live in.
But, broadly speaking, you’ll see two types of trespassing charges referred to everywhere: civil trespass and criminal trespass.
What is Civil Trespass?
Civil trespass, like other civil charges, is a trespassing charge that is initiated by the property owner or the owner’s duly authorized agent.
Typically, this is done in order to collect damages or to initiate punitive action against a trespasser regardless of whether or not any crime has been committed in the eyes of the state.
For instance, if you have someone who continually cuts across the back corner of your large property on their bicycle or dirt bike as they ramble through the woods, you could take them to court civilly for trespass even if they haven’t caused any other damages or trouble.
What is Criminal Trespass?
Criminal trespass, on the other hand, is exactly what you think, being any trespassing law that is enforced by government agents at any level, be they employees of a federal government agency, county sheriffs, police or any other law enforcement agency or individual.
When things get heated and a person refuses to leave a property that they are illegally (or allegedly illegally) on police may arrest the individual.
This is especially common when the property in question is a business or other area or installation is open to the public.
Similarly, criminal trespassing charges can apply when someone is trespassing in order to commit another crime, in furtherance of a crime, in case of flagrant trespassing, trespassing in a dwelling and other related circumstances.
Trespass Laws Vary Considerably from State to State!
One of the very first things you need to learn about trespassing laws in the United States is that they can be very, very different from place to place.
Each and every state puts its own spin on various classifications of trespassing and institutes its own penalty schedules:
Some states might treat trespassing on vacant, unimproved land that isn’t fenced or posted as less than a misdemeanor, potentially not even a violation worthy of a ticket! Another, neighboring state might treat the self-same incident as a misdemeanor.
In regards to more serious trespassing, such as trespassing on agricultural land, fenced or walled property or any other specific kind of property, that could be treated as a very serious crime, potentially felony level!
Accordingly, you must never, ever make assumptions about the trespassing laws in your state.
It’s fair to say that you might have a decent understanding of the basis of the law, sure.
But knowing precisely what the statutes are in your state is essential both to avoid accidentally breaking them, and to protect your own rights when it comes to your property that you own or legally occupy.
The Severity of Trespassing Charges Depends on Several Factors
You’ll usually see trespassing qualified as trespassing in the third degree, trespassing in the second degree, or trespassing in the first degree, with a few variations thereof.
Depending on the state, the actual punishment schedule can range from a mere violation with an associated fine all the way up to a substantial felony that could net you many years in prison.
But regardless of how a state classifies trespassing crimes, the severity of the punishment usually revolves around a few pertinent factors:
1. Type of Property
The type of property that someone trespasses upon is a significant factor in the severity of the crime. Trespassing on unposted, unenclosed vacant land is usually the least offensive.
Trespassing on residential property is substantially more so. Trespassing inside an occupied dwelling or residence is severe enough to typically be constituted as an entirely separate crime, often burglary or home invasion.
Flagrant or aggravated trespassing typically occurs when someone trespasses in defiance of any enclosure like a fence, wall or other barrier designed to prevent entry.
It also occurs if a property is posted against trespassers, so long as the signs are in accordance with the state statutes, or if the trespasser received verbal or written notice against trespassing by the property owner.
Basically, if a person trespasses on any property for any reason in defiance of any obstacle that is explicitly designed to exclude foot or vehicle traffic, or if they trespass after being notified against doing so, they can expect more serious charges.
The reasons why someone is trespassing may make for more serious charges also.
If someone is trespassing with the intention of illegally hunting on the property, poaching animals, vandalizing or stealing property, or committing any other crime, not only will additional criminal charges typically apply but the severity of the trespassing charge itself is typically escalated.
Similarly, if someone trespasses out of negligence or as a direct consequence of some other negligent or reckless action they may be held civilly or criminally liable also.
4. Sensitive Area?
One of the worst kinds of criminal trespass is trespassing in a sensitive or secured area, typically installations that are vital for civic infrastructure or are otherwise protected for security or for matters of civil- or national defense.
For instance, trespassing in or on the property associated with rail yards, airports, train yards, electrical substations, power plants, military installations and other similar areas where serious business is going on pretty much all the time is a sure way to get yourself smacked with major charges.
Much of the time trespassing in any of these areas, even in the absence of any other crime being committed or intending to be committed, is a serious felony with steep fines and lengthy prison sentences.
And that’s prison sentence; not a stint in the county jail!
5. History of Trespassing?
Many states also have specific statutes covering certain grades of trespassing if the trespasser has a history of committing trespass or other related crimes.
For instance, a charge of second-degree trespassing might be a minor misdemeanor on the first instance, a worse misdemeanor on the next and a felony on the third.
How are Properties Posted Against Trespass?
Properties are generally considered to be legally posted against trespassing if they have noticeable signage placed at specific points around the perimeter of the property or at specific intervals as defined by law.
Much of the time, states specify the size, text, and other features of the sign in order for them to have the force of law.
Something else to consider is that a handful of states also allow the use of paint markings, typically vertical stripes of purple paint, to be placed on trees, posts and other objects around the perimeter of a property to notify against trespass in the same way.
Additionally, in many states, any property that is enclosed with a fence or wall is also considered to be “posted” against trespassing in most circumstances.
Meaning, a person could not hop over a low fence and then claim that they didn’t know they were trespassing because there were no posted signs on the fence.
But to recap, posting a property with no trespassing signs, and closing it with a fence or wall (or in a few states making vertical marks of paint) is considered sufficient notification against trespass.
Can A Property Owner Use Force to Prevent or Stop Trespass?
Generally not unless the trespasser is also posing a threat to the property owner or someone else on the property.
A few states allow the explicit use of proportional force in defense of property to stop trespassing, and sometimes a citizen’s arrest is possible when confronting a trespasser, but you are almost never, ever allowed to use force against a trespasser if they are not also using unlawful force against you.
To be perfectly clear: using lethal force against a simple trespasser, absent a specific threat of death to great bodily injury against you, is almost never excusable legally and furthermore is never, ever a good idea.
If someone is threatening you or someone else on your property with unlawful force they could result in great bodily injury or death, you are then likely justified in using your own proportional force, meaning lethal force, in self-defense.
But you cannot use lethal force against a trespasser just because they are flagrantly trespassing on your property!
Are Property Owners Liable for Injury to Trespassers?
Sad to say it is a possibility!
Although a property owner generally cannot be held liable for injuries that might occur to a trespasser as a result of their own actions, it is hardly unheard of that an injured trespasser could construe the facts in court to imply that the property owner knew a danger existed on the property and did not take any steps to prevent unaware people, including trespassers like themselves, from running afoul of it.
Similarly, it’s never, ever okay for any property owner in any state to set booby traps for no or anticipated trespassers.
Any such activity is criminal in nature, and never permissible under any circumstances.
About the only sort of “trap”, if you want to call it that, that is illegal for use in defending your property against trespassers is something like a game trail camera of the kind used for monitoring wildlife or something that is explicitly non-forceful, like a visual or auditory tripwire or sensors connected to lights or a siren.
Can You Take Someone to Court Who Trespassed on Your Property without Damaging Anything?
Yes, you can. Even someone that trespasses without damage or without committing any other crime still breaks the law.
Generally, unless the grade of trespassing that occurred is so minor it is only punishable by a fine, it is possible to take someone to court for a civil action.
Now whether or not this is a good idea is an entirely different question: for one thing, hiring an attorney for the process is going to be costly…
This will eat up time and energy that you could be spending on other things and there is no guarantee that the court will rule in your favor, meaning you might then be liable for the legal fees of the defendant.
Nonetheless, if someone is repeatedly or wantonly trespassing on your property and you’re sick of it and wanted to stop, you have the right to keep them off of your property and enjoy a quiet domain.
Tom Marlowe practically grew up with a gun in his hand, and has held all kinds of jobs in the gun industry: range safety, sales, instruction and consulting, Tom has the experience to help civilian shooters figure out what will work best for them.