Police, The Fourth Amendment, Qualified Immunity

Another “lease party” case

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Sometimes tenants decide to have a party in their unit either before the lease starts just as their lease is ending, or after their lease is over. I don’t have firsthand experience, but I guess these parties can get pretty wild. These parties raise interesting issues under criminal trespassing law, specifically, the state of mind (mens rea) required by a defendant to be guilty of criminal trespass. As legally sophisticated readers will appreciate, mens rea has, for centuries now, had an important place in criminal law to protect defendants (for example the difference between murder and manslaughter is basically a difference in mens rea), but mens rea seems to be on the decline as America increasingly becomes a law-and-order oriented nation with fuller and fuller prisons.

Mens rea does not come up that much in the civil cases against the police covered by this blog, but I thought the following dissent was kind of funny because criminal trespass law traditionally does require posting, warning signs, notice, or the like. Traditionally, this requirement of signage was required to ensure that the trespasser knew she was trespassing, which is to say, “no trespassing” signs have long been a way to help establish mens rea on the part of those who ignore the signs. I mean, have you ever seen a “no trespassing” sign? I know I have. Notwithstanding all that, here is what Judge Brown has to say . . .

Case: WESBY v. District of Columbia, Court of Appeals, Dist. of Columbia Circuit 2014

Dissent by Judge Brown:

The court today articulates a broad new rule—one that essentially removes most species of unlawful entry from the criminal code. Officers must prove individuals occupying private property know their entry is unauthorized; otherwise police lack probable cause to make arrests. Moreover, any plausible explanation resolves the question of culpability in the suspects’ favor. Thus, unless the property is posted with signs or boarded up and attempts to prevent access have been deliberately breached, i.e., there is direct evidence of unauthorized entry, law enforcement’s options are limited to politely asking any putative invitee to leave.

Written by Burgers Allday

September 6, 2014 at 5:34 am

Posted in Uncategorized

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