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F 5.40a
Ejection Of Civil Trespasser As Defense To Criminal Battery
*Add the following to CJ 5.40 when appropriate:
Ordinarily a lawful possessor of property in the exercise of [his] [her] inherent right to protect the property is justified in restraining another who seeks to interfere with or enter it. A lawful possessor may also consent to others entering the property. Such consent may be conditioned on the others using the property for a specific purpose or at a specific time. This is referred to as a conditional or restrictive consent.
A conditional or restrictive consent to enter such property creates a privilege to enter the property only insofar as the entering party complies with the condition or restriction. As soon as the entering party fails to comply with the conditions of a conditional or restrictive consent, that party interferes with the owner’s property rights [becomes a trespasser].
The owner, occupant, or person in charge is justified either in ejecting the entering party [trespasser] or in holding [him] [her] and calling upon officers of the law to take [him] [her] into custody for investigation.
The owner, occupant, or person in charge is justified in enforcing the owner’s ground rules. The amount of force which may be used to enforce the owner’s ground rules is limited by what would appear to a reasonable person under existing circumstances to be necessary to enforce such rules.
The prosecution has a burden of proving that any touching was unlawful and unjustifiable. If you have a reasonable doubt whether the touching was made in the course of a lawful enforcement of a possessor’s conditional consent for others to enter the property, you must find the defendant not guilty.
Points and Authorities
“Ordinarily, the owner of property, in the exercise of his inherent right to protect the same, is justified in restraining another who seeks to infer with or injure it. [Citation].” (Collyer v. S. H. Kress & Co. (36) 5 C2d 175, 180 [54 P2d 20].) However, a trespass may occur if the party, entering pursuant to a limited consent, i.e., limited as to purpose or place, proceeds to exceed those limits by divergent conduct on the land of another. (Civic Western Corp. v. Zila Industries, Inc. (77) 66 CA3d 1, 17 [135 CR 915].) “A conditional or restricted consent to enter land creates a privilege to do so only insofar as the condition or restriction is complied with.” (Rest. 2d Torts, § 168.) Hence, an unlawful touching does not occur when a possessor of private property lawfully attempts to eject or detain one who has initially trespassed or one who has exceeded the bounds of a consensual entry.
Because it is the prosecution’s burden to prove beyond a reasonable doubt that the touching was unlawful, if the jury has a reasonable doubt as to whether the defendant was engaged in a lawful detention or ejection of a trespasser, then the jury must be instructed to find the defendant not guilty. (See FORECITE PG III(A), “Pinpoint Instructions”.)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]
