Tuesday, June 17, 2008

F&M Wrong re Defiant Trespass

NewsLanc investigates, it doesn't just report. So we engaged a law firm to analyze and write an opinion concerning whether Franklin & Marshall properly is interpreting and utilizing Defiant Trespass notices. The report follows:

There are a couple of issues surrounding this situation. First the trespass statute provides that one could be charged with defiant trespass when notice has been given by:

"an actual communication to the actor to leave school grounds as communicated by a school, center or program official, employee or agent or a law enforcement officer."

This issue then becomes what constitutes "school grounds." The legislature helped out on that, though and defined them as:

"the term 'school grounds' means any building of or grounds of any elementary or secondary publicly funded educational institution, any elementary or secondary private school licensed by the Department of Education, any elementary or secondary parochial school, any certified day-care center or any licensed preschool program."

This definition does nothing to help F&M. Certainly tenant restaurants and stores should not be considered "school grounds" and even if they were, a lessee, like the Iron Hill Brewery, owns the present interest in the property leased. A restaurant could send its own "no trespass" letter, but its property would not necessarily be governed by a "no trespass" letter sent by the landlord.

Also hurtful to F&M's position that it can exclude people from all property it owns is the second defense to trespass charges:

"the premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises"

This defense should be a shield if F&M ever tries to prosecute someone who receives on of these letters from going to a concert at F&M or eating at restaurants open to the public. F&M could attempt to harass people with these letters and it could be difficult to fight back given their lack of status as a state actor. This consideration becomes a close question if F&M mails such letter than if they use their police force to enforce such letters. If they use their police force to try to remove someone who is complying with the law from a public area, they run the risk of a civil rights violation for arresting someone without probable cause. (Emphasis added.)

One very useful case comes from the Pennsylvania Supreme Court over 25 years ago. In Commonwealth v. Tate, a Muhlenberg College, private institution, a group who was handing out leaflets on the college property without any disorderly activity, were charged with defiant trespass. The person had attempted to get a permit from the college to hand out his leaflets, but was turned down. The Supreme Court found that the defiant trespass charges could not stand. The court found as follows:

"Here we are faced with an educational institution which holds itself out to the public as a community resource and cultural center, allows members of the public to walk its campus, permits a community organization to use its facilities as a forum for a public official of national importance, and at the same time arbitrarily denies a few members of the public the right to distribute leaflets peacefully to the relevant audience present at that forum. In these circumstances, we are of the view that the Constitution of this Commonwealth protects appellants' invaluable right to freedom of expression against the enforcement, by state criminal statute, of the college's standardless permit requirement."

While the court focused on a standardless permit scheme, a similar argument could be made against F&M if they arbitrarily accost people at places on the college grounds open to the public.