法律英語 Legal Lad 2013 Trespassers Won’t Be Prosecuted

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!
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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.
Prosecute and persecute do share a common root: they both come from the Latin sequor (“to follow”), but they are vastly different words. Prosecute has a general sense of pursuing a course of action to its conclusion – be it criminal proceedings or some other activity. Persecute, on the other hand, means to single out a particular person or group for hostility or ill-treatment.
Surprisingly, the prosecute vs. persecute confusion persists, even among educated observers. For example, in 2004 when jury selection began in the Kobe Bryant rape case, one California newspaper referred to “persecution and defense lawyers” screening the prospective jurors.
You Can Be Sued in Civil Court for Trespass
So when the landowner posted his scary sign, he didn’t mean that trespassers will be arrested, or prosecuted, or persecuted. What he meant was that “trespassers will be sued for money” which doesn’t sound nearly so threatening. Having said that, even a civil lawsuit is usually enough to make Legal Lad turn around and flee from the meadow.
You can be sued for trespass, because it is a tort or a “civil wrong.”In fact, trespass was the original tort: a term meaning “any wrongful conduct that interferes with the person or property of another.”
There Are Many Types of Trespass
Today, when we think of trespass in the legal context, we have something more narrow in mind – the unauthorized entry onto another person’s property. In reality, that sort of conduct is properly called “trespass to land” and it is only a subset of the doctrine of trespass. Until the 19th century, there were many forms of trespass, including trespass de bonis asportatis (literally, trespass of goods carried off) and trespass vi et armis (literally, trespass with force and arms; this was the cause of action to recover money from somebody who intentionally inflicted harm on you). And again, none of these forms of trespass required prosecution by the state.
Somewhere out there, an entrepreneur may be reading and might just be inspired to create a new generation of trespassing signs with snappy but legally-correct slogans, like: “Warning: Trespassers will not be prosecuted or persecuted, but will be subject to civil lawsuits.” That one ought to fly off the shelves.
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