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Trespassers Won’t Be Prosecuted

It’s often said that “trespassers will be prosecuted,” but the truth is, they won’t!  Get a legal expert’s take on trespassing and why it usually is not a criminal matter.

By
Adam Freedman
March 16, 2013

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Today’s topic: Trespassers will be prosecuted – or will they? 

And now, your daily dose of legalese:  This article does not create an attorney-client relationship with any reader.  In other words, although I am a lawyer, I’m not your lawyer.  In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Will Trespassers Be Prosecuted?

Maybe this will ring a bell.  It’s a sunny day, the birds are singing, you’re out for a walk down a nice country lane and you wander on to an inviting meadow . . . only to be confronted by an ominous sign declaring: Trespassers will be prosecuted. To which, Legal Lad says: “No they won’t.” And I’ll even explain why!

Only the State Can Prosecute

The common phrase “trespassers will be prosecuted” is almost an oxymoron. Here’s why. To “prosecute” somebody means “to bring a criminal case” against him or her, and only the state can bring a criminal case. A “prosecutor” is always a government employee; for example, a District Attorney, or a United States Attorney.

Civil Versus Criminal

Trespass, however, is generally not a crime; rather it’s a civil wrong that allows one person to sue another person for an injunction or compensation. (Okay, in some limited circumstances, a trespass can also be a crime, but that’s more likely to arise when you wander onto a secret government missile base, not on to your neighbor’s meadow).

Prosecute Versus Persecute

Not only do people routinely misuse the word “prosecute” but – even worse – they sometimes substitute the word “persecute”; as in the rough hewn sign you might see out in the back country saying “Trespassers will be persecuted to the full extent of my shotgun” – or words to that effect.

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