Rights of NY Landowners to Use Force (Display Guns) to Stop, Detain, Expel and Arrest Defiant Trespassers (or suspected Land-Thieves, etc.)

By Mark R. Ferran BSEE scl JD mcl (RPI '92)

If a stranger is trespassing in defiance of conspicuous "No Trespassing" or "Posted" signs or he has refused to leave unenclosed land (or any other "premises") when lawfully ordered by the land-owner (or home-owner, store-owner, condo-owner, apartment-tenant or other lawful occupant) to do so, or the stranger is thereafter notified that he is being held for any such "offense" for the police but attempts to flee, the occupant has statutory rights to use non-deadly force (including the "mere display" of a weapon or the USE of PEPPER-SPRAY) if necessary to expel or to detain the intruder.

"'Property' is more than just the physical thing-the land, the bricks, the mortar-it is also the sum of all the rights and powers incident to ownership of the physical thing. [T]he right to use the physical thing to the exclusion of others is the most essential and beneficial. Without this right all other elements would be of little value.'"

Dickman v. Commissioner, 465 U.S. 330, 336 (1984).

"The ownership and possession of property confer a certain right to defend that possession, [including] a defense of it which results in an assault and battery, and that which results in the destruction of the means used to invade and interfere with that possession."

People v. Kane, 131 N.Y. 111 (142 N.Y. 366, 37 N.E. 104).

In Cross v. State, 370 P.2d 371 (Wyo 1962) the Court found that the Due Process of Law clause in the state constitution guaranteed "the inherent and inalienable right to protect property."

"Justification does not make a criminal use of force lawful; if the use of force is justified, it cannot be criminal at all. ... The defense of justification (NY Penal Law art. 35) affirmatively permits the use of force under certain circumstances. ... The defense does not operate to "excuse" a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful (see, People v. Taylor, 177 N.Y. 237, 245, 69 N.E. 534). ... In this regard, the current statutory defense reflects the common-law "right" of an individual to repel a threat [to his person or property]. Defense [was] deemed a natural, inalienable right at common law."

People v. McManus, 67 N.Y.2d 541, 496 N.E.2d 202, 505 N.Y.S.2d 43 (1986).

"That a landowner has a legal right to exclude the public is recognized in the sections of New York's Penal Law dealing with offenses involving damage to and intrusion upon property (see Penal Law, art. 140, particularly 140.05....). This "power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights. … Moreover, an owner suffers a special kind of injury when a stranger directly invades and occupies the owner's property" (Loretto v Teleprompter Manhattan CATV Corp, 458 U.S. 419)."

People v. Scott, 79 N.Y.2d 474, 583 N.Y.S.2d 920 (1992). http://www.law.cornell.edu/ny/ctap/079_0474.htm

As Justice Byron White of the United States Supreme Court noted:

"A man's right to defend his property has long been recognized at common law...[P]erhaps a government edict barring one from resisting the loss of property is the constitutional equivalent of taking such property in the first place..."

Christy v. Hodel cert. den., 490 U.S. 1114 (1989).

"Property rights convey the right to benefit or harm oneself or others. ... A man may be permitted to benefit himself by shooting an intruder [in his dwelling]." Harold Demsetz (1967).

The legal right of a Landowner in NY to commit "battery" (i.e. harmful contact) and "assault" (i.e., attempts or threats of battery) as necessary to stop, expel or arrest a defiant trespasser on "any premises" is regulated and codified in Article 35 of the Penal Law. See http://assembly.state.ny.us/leg/?cl=82&a=12

New York Penal Law section 35.05, titled "Justification; generally," provides:
"Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when: 1. Such conduct is required or authorized by law…"

Penal Law 35.10 is a "law" which generally authorizes the "use of physical force."

Penal Law 35.10, titled "Justification; use of physical force generally," prescribes:
"The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances: …
"6. A person may, pursuant to the ensuing provisions of this article, use physical force upon another person in defense of himself or a third person, or in defense of premises, or in order to prevent larceny of or criminal mischief to property, or in order to effect an arrest or prevent an escape from custody. Whenever a person is authorized by any such provision to use deadly physical force in any given circumstance, nothing contained in any other such provision may be deemed to negate or qualify such authorization."

Penal Law 35.20, titled "Justification; use of physical force in defense of premises and in defense of a person in the course of burglary" prescribes:
"1. Any person may use physical force upon another person when he reasonably believes such to be necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission by such other person of a crime involving damage to premises.   He may use any degree of physical force, other than deadly physical force, which he reasonably believes to be necessary for such  purpose, and he may use deadly physical force if he reasonably believes such to be necessary  to  prevent or terminate the commission or attempted commission of arson
2. A person in possession or control of any premises, or a person licensed or privileged to be thereon or therein, may use physical force upon another person when he reasonably believes such to be necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission by such other person of a criminal trespass upon such premises. He may use any degree of physical force, other than deadly physical force, which he reasonably believes to be necessary for such purpose, and he may use deadly physical force in order to prevent or terminate the commission or attempted commission of arson, as prescribed in subdivision one, or in the course of a burglary or attempted burglary, as prescribed in subdivision three.
3. A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary [See Definition of Burglary (Intent) at PL sec. 140.20 at:
http://assembly.state.ny.us/leg/?cl=82&a=31 ].
4. As used in this section, the following terms have the following meanings: (a) The terms "premises," "building" and "dwelling" have the meanings prescribed in [PL] section 140.00."

Penal Law 140 titled, "Criminal trespass and burglary; definitions of terms," today prescribes that " 'Premises' includes the term 'building', as defined herein, and any real property [i.e., any land]."

Penal Law 140.05, today titled "Trespass," prescribes that: "A person is guilty of [a criminal] trespass when he knowingly enters or remains unlawfully in or upon premises. Trespass is a violation." See
http://assembly.state.ny.us/leg/?cl=82&a=31 (Penal Law Article 140)

The following text is from the Practice Commentaries in the 1999 edition of McKinney's Penal Law 140:

"A person who knowingly enters or remains unlawfully upon PREMISES, a building or a dwelling, IS GUILTY OF criminal trespass. … The term 'premises' is defined to include the term 'building' and 'ANY REAL PROPERTY' PL 140(1). The term 'building' includes dwelling (140.00(2)&(3)). Thus, 'premises' is the all-inclusive term. … Both trespass and burglary require that a person must 'knowingly' enter or remain unlawfully in or upon premises. … Thus, a person who trespasses upon premises 'accidentally or who honestly believes' that he or she is licensed or privileged to enter or remain is not guilty of ["any degree of criminal trespass"]. People v. Basch, 1975, 36 N.Y.2d 154, 159. … People v. Tuchinsky, 1979, 100 Misc 2d 521, 524, 419 N.Y.S. 2d 843 ("One does not acquire immunity from prosecution for trespass by closing one's eyes to reality and stubbornly asserting an 'honest belief' to [enter or] remain where one is not privileged to be.")
"The offense of [criminal] trespass is in essence divided into four degrees. The lowest 'degree,' formerly 'criminal trespass in the fourth degree'[L. 1969, c. 341] was renamed simply 'trespass,' because it is a violation, not a crime. L. 1971, c. 307. In accord with the general structure of offenses divided by degrees, the lowest degree [of criminal trespass] constitutes the basic offense, and the higher degrees are a combination of that offense and one or more aggravating factors. The basic crime of trespass is committed when a person knowingly enters or remains unlawfully in or upon premises. 140.05. The higher degrees [of criminal trespass] depend generally on whether the premises consists of a building, a dwelling, or real property which is fenced or otherwise enclosed in a manner designed to exclude intruders, a school, etc….[Note: "A person is guilty of burglary ... when he knowingly enters or remains unlawfully in a building WITH INTENT TO COMMIT A CRIME THEREIN."
http://assembly.state.ny.us/leg/?cl=82&a=31 In certain emergency situations, a person may be privileged to break into an apparently unoccupied dwelling (see discussion at end of "While Leaving Ground Zero" at http://billstclair.com/ferran , but he assumes the risk of being shot, or arrested at gun-point.]

Article 35 was enacted together in pari materia with Article 140. At the same time that the legislature wrote that "A person in possession or control of any premises, … may use physical force . . . to prevent or terminate … the commission or attempted commission by such other person of a criminal trespass upon such premises." (PL 35.20(2)), there were (only) THREE DEGREES of "criminal trespass" defined in Penal Law article 140, the lowest degree was present section 140.05 (which was then a "violation" titled "Criminal trespass in the third degree")

In 1969, by L. 1969 Chap. 341, the title of PL s 140.05 was changed from "Criminal trespass in the third degree" to "Criminal trespass in the fourth degree." And then there were FOUR DEGREES of the offense known as "criminal trespass," and the lowest degree of "criminal trespass" was PL 140.05 which was still a "violation." And that is the substance of the Law Today.

The statutory right of a land-owner under PL s 35.20(2) to prevent or terminate the commission of "a criminal trespass" upon "any premises," was not intended to be limited to the prevention of only a "crime" involving a trespass upon such "premises." (Cf. PL 35.20(1)). The term "premises" was purposefully defined expansively to include "any real property" (PL 140.00(1)) which necessarily includes un-fenced and un-enclosed land. Therefore the "any premises" which may be defended by non-deadly force against "criminal trespass" is NOT LIMITED TO land "which is fenced or otherwise enclosed." The "all inclusive" statutory definition of the term "any premises" used in PL 35.20(2) informs the reader of the types of private property which may be forcibly defended by "a person in possession or control of any premises."

However, in 1971 a latent ambiguity was inadvertently introduced into the Penal Law structure, when somebody decided that someone convicted of only a "violation" (not a "crime") should not have a conviction Record that reads "Criminal" trespass [PL 140.05]. So, to remove the "stigma" of the odious title of "criminal," the legislature changed the title of PL 140.05 to read simply "Trespass" but did not change the substance of the offense. See Commentaries about L. 1971 Chap. 307. The change to the mere title of PL 140.05 was not avowed nor intended by the Legislature to cause any "substantive" (e.g., Socialist) change in the Law whatsoever. Some ignorant or devious people have used this ambiguity to attempt to Practically Abolish the Institution of Private Property with respect to "open land" (i.e., unfenced lands, including back-yards). But other people, knowledgeable of the Law, have consistently recognized that the ancient and inalienable right of a land-owner to defend private land has not been abolished.

In the 1975 Practice Commentaries to PL 35.20, Arnold D. Hechtman stated:

"This section [of Article 35 of the Penal Law] addresses the use of physical force to repel an unlawful intrusion on property. ... In this general area, the former Penal Law [i.e., prior to 1965] was substantially similar to the instant section's provisions with respect to the use of ordinary physical force in that it simply authorized a person to use physical force as might be necessary to prevent 'a trespass or other unlawful interference with real property in his lawful possession.' ...
"A noteworthy feature of subdivision 1, dealing with 'crimes' involving real property 'damage,' is that 'Any person' -including one who is neither owner nor occupant nor licensee- may use physical force to prevent or terminate criminal mischief or arson of real property, and deadly physical force in the case of an arson or arson attempt. Thus, a passing pedestrian who reasonably believes that a man observed by him is about to set fire to a house owned by a person whom the pedestrian does not even know may shoot the arsonist if such be necessary to prevent the crime.
"Subdivision 2, devoted to the prevention and termination of [any] criminal trespass, is primarily applicable to cases of trespass not amounting to burglary and not involving arson. Absent those features, an owner or occupant of premises or a person privileged to be thereon- but no one else- is here authorized to use any physical force, other than deadly force, which he reasonably believes to be necessary to prevent or terminate the intrusion."

See also http://www.publications.ojd.state.or.us/A107057.htm

The 1971 change in the title of PL 140.05 was certainly NOT intended by the People of New York to practically Abolish the Institution of Private Property with respect to the "inalienable" right to defend unfenced and unenclosed real "property" in the State of New York.

The Right to forcibly prevent or terminate a simple unlawful "intrusion" upon (conspicuously or statutorily posted) private land is the Right of the Land-Owner or lawful occupant ALONE not the right of any other "passing pedestrian." One person's Trespass Does Not Justify Another.

As Judge Donnino pointed out, "A person who knowingly enters or remains unlawfully upon PREMISES, a building or a dwelling, IS GUILTY OF criminal trespass" for the purposes of a landowner's right to use necessary physical force (e.g., Pepper-Spray) in "defense of premises."

The term "criminal trespass" is a term used to distinguish the Penal offense defined in PL s 140.05 from a mere "civil trespass." (A person who commits "a criminal trespass" that is punishable in "criminal action" is also liable for committing a "civil trespass" in a "civil action" for damages.) In two cases the NY High Court plainly characterizes a violation of PL 140.05 as being "a criminal trespass" (as distinguished from a mere "civil trespass").    First, in People v. Basch, 36 N.Y.2d 154, 159, DECIDED IN 1975, and mentioned above by Judge Donnino.

Next, the NY High Court stated in People v. Scott, 79 N.Y.2d 474 (1992) that persons (e.g., police officers) who entered "open fields" "which consisted of 165 acres of rural, hilly, undeveloped, uncultivated fields and woodlands" that were conspicuously posted by "posting 'no trespassing' signs about every 20 to 30 feet around the perimeter of his property" were "committing criminal and civil trespass by entering the land" in defiance of those conspicuous signs.
The Court specifically cited "Penal Law, art. 140, particularly 140.05, Trespass" in support of that statement.

The Court also said:

"[P]roperty rights reflect society's explicit recognition of a person's authority to act as he wishes in certain areas…. That a landowner has a legal right to exclude the public is recognized in the sections of New York's Penal Law dealing with offenses involving damage to and intrusion upon property (see Penal Law, art. 140, particularly 140.05, Trespass and 140.10(a), Criminal Trespass in the third degree [unlawful to remain upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders]; see also, Model Penal Code and Commentaries, Part II, 221.2 [1980], at 87). This "power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights" (Loretto v Teleprompter Manhattan CATV Corp, 458 U.S. 419, 435; see, Seawall Assoc. v. City of N.Y., 74 NY2d 92, 102-106; O. Holmes, The Common Law, 208-214, 244-246).
"Our Legislature has recognized the owner's right to prohibit entry on land in the posting provisions of the Environmental Conservation Law (see, ECL 11-2111, 11-2113, 71-0925, 79-0919) and in General Obligations Law 9-103.... [W]e do not dismiss so lightly the fact that the police were violating defendant's property rights and committing criminal and civil trespass by entering the [un-fenced and un-enclosed] land. As Justice Brandeis observed, "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law..." (Olmstead, 277 U.S., at 485 [Brandeis, J., dissenting]). … [The idea] that an owner can never have an expectation of privacy in open lands is repugnant to New York's acceptance of "the right to be let alone" as a fundamental right deserving legal protection. …
"We hold that where landowners fence or post "No Trespassing" signs on their private property or, by some other means, indicate unmistakably that entry is not permitted, the expectation that their privacy rights will be respected and that they will be free from unwanted intrusions is reasonable. In the case at bar, the warrantless entries of State Police … were illegal under NY Const. art I, 12. That the property was posted with "No Trespassing" signs is undisputed."

People v. Scott, 79 N.Y.2d 474, 583 N.Y.S.2d 920 (1992).
(Note: This landmark case was successfully argued by Albany Attorney Terry Kindlon).

Hence: "A person in possession or control of ANY PREMISES [i.e., ANY REAL PROPERTY], …may use physical force … to prevent or terminate ... a [defiant] trespass upon such premises. He may use any degree of physical force, other than deadly physical force, which he reasonably believes to be necessary for such purpose." PL 35.20(2).

In People v. Munafo, 50 NY2d 326, 50 NYS2d 326 (1980), the High Court noted that a landowner has the "power to convert certain lawful entries on real property into unlawful ones" (e.g., by posting conspicuous "No Trespassing" signs), and that the NY Penal Law shall be interpreted according to "established real property concepts."

See also, Trespass, Recreational access and owner liability:


"What is posting under the Environmental Conservation Law (ECL)?" http://www.dec.state.ny.us/website/dfwmr/posting.htm

Posting "conspicuous" signs (e.g., "Posted"/"No Trespassing") along your boundaries "will give you great protection from trespassers as well as limiting liability." http://www.dnr.cornell.edu/ext/forestrypage/publications%20&%20articles/proceedings/landowner_liability_plaskov.htm

NY Environmental Conservation Law allows landowners to post of regulation-sized "POSTED" signs more than 600-feet apart, which in most forest-land situations is not "conspicuous" posting for purposes of NY Penal Law "Trespass" (PL 140.05), but which does make the trespasser subject to arrest (see below). "Q. Is it an offense to trespass on areas posted against trespass pursuant to the ECL? A. Yes, it is a violation, punishable by a fine up to $250 and/or up to 15 days in jail. http://www.dec.state.ny.us/website/dfwmr/posting.htm

See ECL sec. 11-2111. titled "Posting; service of notice," and sec. 11-2113. titled "Effect of posting or service of notice," and sec. 11-2115, titled "Posted and unposted lands; failure to leave on request" at: http://assembly.state.ny.us/leg/?cl=37&a=35 or at: http://www.nysorva.org/documents/EnCon11-2111.htm

"An owner ... may protect such lands or waters, or the licensed premises, by posting or personally serving notices as provided. ... Personal service of a notice in writing with a description of the premises and a warning shall be as if the premises described were posted (ECL 11-2111)."
"Sources: McKinney's Consolidated Laws of New York Annotated, 1984, Articles 3, 11 and 71; 1992 Cumulative Annual Pocket Part."

"[G]enerally, restraint or detention [of trespassers and/or of their personal property (e.g. vehicles)], reasonable under the circumstances and in time and manner, imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property in one's lawful possession or custody is not unlawful. … And although confinement reasonably perceived to be unlawful may invite escape, the person falsely imprisoned is not relieved of the duty of reasonable care for his own safety in extricating himself from the unlawful detention."
Sindle v. NYCTA, 33 N.Y.2d 293, 307 N.E.2d 245 (1973); Fieldston Prop. Owners Assn. v. City of New York, 16 NY2d 267, 269; Forest Hills Corp v. Kowler, 80 AD2d 630; Forrest Hills Corp. v. Baroth, 147 Misc. 2d 404.


Originally, in New York, a landowner's only duty with respect to dangerous conditions, ferocious animals, and known hazards upon his land was to "confine" them upon the land, and to inform invited guests of their presence: "It was long ago decided in this State that 'a man may keep a dog for the necessary defense of his house, his garden or his fields'.… And in the same case it is said: 'Where a dog is lawfully kept for the purposes of protection a trespasser cannot maintain an action for an injury if he come in the way of the dog.' [Because:] If the dog must be so confined that under no circumstances can he attack or injure a trespasser, then he may as well be dead, and the rule results in this, that no dog capable of defending property can be lawfully kept by any person. [T]he mere keeping of a ferocious dog, knowing him to be such, for the purpose of defending one's premises, is not in itself unlawful. And when injury follows from one so kept, the manner of his confinement and the circumstances attending the injury are all to be considered in determining the owner's liability. … There was nothing unusually or unnaturally vicious about the dog in question. He would, it seems, attack and bite any stranger who insisted upon forcing his way to the locality he was set to guard. Beyond that, it does not appear that he was of a vicious nature, or dangerous to mankind. … In my judgment the keeping of those dogs was not an unlawful act, and their confinement was all that could be required. They were securely chained within a space into which no stranger was invited to come; where he would have no business to go, and through which none could be reasonably expected to wander. Can it be said that, under such circumstances, the defendant was maintaining a nuisance in his back yard? It [was] but a danger, maintained on his own premises and in a locality upon which the plaintiff had neither invitation nor license to enter, and against which the defendant owed no duty to plaintiff either to protect or warn him." Woodbridge v. Marks, 45 N.Y.S. 156, 160, 17 App. Div. 139 (1897).

In modern times, liberalized New York liability law generally compels the prudent NY land-owner to post a reasonable "warning" of non-obvious hazards even to trespassing intruders, in order to enable the trespassers to make an informed decision as to whether they really do want to Create and Assume the Risk of injuring themselves upon the property.  For example, signs warning: "Keep Out: Spring Guns Concealed on Premises", or "Keep Out: Beware of Man-Eating Dogs" (or "Angry Bulls", "Head-Kicking Horses", "Rabid Attack-Porcupines," "Thorny-Locust Trees," etc) would give Trespassers the opportunity to Knowingly Create and Assume the Risk of being shot, or eaten alive (etc.) during their defiant trespasses.  This important principle of private property rights, reflecting "society's explicit recognition of a person's authority to act as he wishes in certain areas [and] the owner's right to prohibit entry" (People v. Scott, above), is illustrated in the case of Weber v. Bob & Jim, Inc., 59 Misc. 2d 249; 298 N.Y.S.2d 854 (Sol. Wachtler, J. 1969), decided by (future-chief-justice) Sol. Wachtler, J.

In the Weber case, the premises where the dog-bite occurred contained a small business office located in one corner thereof. The owner of the premises knew the dog had vicious propensities and with such knowledge, permitted the dog to be located upon the defendant's premises, which were not enclosed. A sign reading "Beware of Dog" was placed on the building. The property was open to the street on which the property faced. The trespassing plaintiff was bitten when he unlawfully used the defendant's property, which was about 50 feet in width and 100 feet in depth, as "a short cut" to his home. The court summarily dismissed the plaintiff's suit, explaining: "The dog was secured by a heavy chain approximately 12 feet in length. This tether prevented the dog from going beyond the property of the defendant and that one of the facts which precipitated the incident was the trespassing of the plaintiff on this property. Even if we were to assume the vicious propensities on the part of the dog, it is the opinion of the court that the owner acted in a reasonably prudent manner by posting signs [e.g., Beware of Dog] and by chaining the animal within the confines of his property. The plaintiff was a trespasser and in the court's opinion placed himself in a dangerous position which not only precipitated but invited the contact and subsequent injuries. … The court does not suggest that the defendant owed no duty whatsoever to the plaintiff even as a trespasser; however, it is of the opinion that this duty was amply discharged by the posting of signs and the tethering of the animal. Plaintiffs have failed to sustain the burden of proving negligence on the part of the defendant and accordingly the complaint is dismissed."

Thus, it seems, that in addition to "confining" a ferocious animal (e.g., by fencing or by "tethering") upon his premises, a prudent New York land-owner will also be expected to "post signs" generally warning potential trespassers of peculiar non-obvious risks inherent in trespassing (entering) upon that particular land. Apparently, the signs need not explicitly state that "Trespassers Assume the Risk of Being Bitten and/or Eaten Alive by Ferocious Dogs Kept unattended On this Land." But, presumably that kind of explicit warning, giving notice of the type of Risks to be Created and Assumed by Trespassers would be more than sufficient to give a Trespasser the ability to consciously choose (Or Choose Not) to Create and Assume those Risks by knowingly "plac[ing] himself in a dangerous" place. A warning gives the potential intruder personal responsibility for his own decisions.

"It would be ludicrous to hold that someone is liable because his watchdog failed to discriminate between an inadvertent trespasser on the property and one who is there bent on criminal activity." Bramble v. Thompson, 264 Md. 518; 287 A.2d 265 (MD 1972)

Section 516 of the Restatement of Torts recognizes that a possessor of land has a privilege to employ a mechanical protective device for protection of his property to the same extent he is entitled to use a watchdog. "Mechanical devices and animals may be used for the protection of property.... Barbed wire, fence spikes, and broken glass are reasonable since they serve to exclude.... Spring guns and traps on the other hand are dangerous weapons.... Dogs, ... are generally treated like mechanical devices [and] a posted warning in such cases has [in New York state] served as a defense." Rights Incident to Possession of Land, sec. 28.18 Forcible Resistance Against Intruders (KF575 M367).

New York's Highest Court long ago noted: "The distinction between acts done by the owner to repel a trespass, he being present, and his taking measures for the general protection of his rights during his absence, [ New York's highest court found]: In the former case he can fix himself the necessary measure of violence; in the latter he can only provide the means with a measure of prudence adapted to his general purpose, and the trespasser [with notice] must act at his peril [as in the case] of a man keeping a dog for the necessary defense of his garden, his house or his field [or as in a case of] of keeping a useful domestic animal, a mischievous bull for instance, in a remote inclosure [or as in a case of] setting spring guns with public notice of the fact; for even that has been held warrantable.  And there can be no doubt that, as against a trespasser, a man may make any defensive erection, or keep any defensive animal which may be necessary to the protection of his grounds, provided he take due care to confine himself to necessity.  But it has been held that in these and the like cases, the defendant shall not be justified, even as against a trespasser, unless he give notice...." Loomis v. Terry, (New York' Highest Court, 1837).

There are some NY attorneys who have opined that simply placing conspicuous "Keep Out" or "No Trespassing" signs around an area containing non-obvious hazards is sufficient (even without more-specific warnings) to relieve a landowner of liability to a "defiant" (criminal) trespasser, based upon the NY High Court's holding that: "where landowners fence or post "No Trespassing" signs on their private property or, by some other means, indicate unmistakably that entry is not permitted, the expectation that their privacy rights will be respected and that they will be free from unwanted intrusions is reasonable." http://www.law.cornell.edu/ny/ctap/079_0474.htm Thus, where the landowner has posted Conspicuous "No Trespassing" signs, visible barriers, or given other (verbal or written) orders or warnings, it is "reasonable" for the landowner to believe that the "No Trespassing" signs "will be respected" and that pedestrians/trespassers will Not Enter and will therefore not be injured on any supposedly non-obvious hazardous conditions on the grounds of the premises.

"As a general rule, an occupier of land owes No Duty to (Defiant) Trespassers to keep his land in reasonably safe condition or to conduct his normal activities so as not to injure them. The theory is that since the occupier has the right to fix the terms and conditions upon which any one may enter his land, those who (defiantly) trespass without his permission have no right to expect him to safeguard them in their unlawful conduct. [citing cases] That general rule is based on sound public policy. It would be an obviously unreasonable burden to require owners of property to keep the whole of their premises in such condition as to make every part of it safe for those who have no right to enter. … So the law is that owners owe (defiant) trespassers No Duty of even reasonable or ordinary care. Restatement, Torts sec. 233. "

People v. Joseph, 172 NYS2d 463 (1958).

"[I]n order to establish the defendant's guilt of reckless endangerment the People would have to prove (1) that the defendant was under a duty imposed by law… [T]here is no assertion that the Law (in 1972) imposed a duty on [landowners] to provide a fence [around the premises]. No statute, ordinance or regulation requiring [a complete fence around a supposed hazardous condition on private property (but see note below)] has come to the attention of the Court and it may safely be assumed that there is none. There was no such duty under common law. … Clearly to all… adults and children alike, the [premises] was off-limits…. Where there is no duty 'imposed by law' there can be no breach of duty."

People v. Landson Terrace Apartments, Inc., 332 NYS2d 705 (1972).

The Law of New York therefore appears to continue to draw a distinction between liability to honest trespassers and liability to "defiant" (criminal) trespassers.  By definition, defiant (criminal) trespassers are those who defy conspicuously posted Warnings, physical Barriers designed to exclude them and other Lawful Orders from the landowner that are calculated to "guard or warn" them from injuring themselves upon private property. Traditionally, a defiant (criminal) trespasser has no right to complain when he Creates and Assumes the Risks inherent in defying a land-owner's lawful orders to Keep Out of private premises containing non-obvious hazards. However, some Officers of NY Courts who are Socialist Land-Reformists (see below) cannot be expected to agree with or to uphold that ancient moral and legal principle of property law.

[Note: By Executive Order, in 2002, NY Governor George Pataki decreed an edict adopting the "International Property Maintenance Code" that provides, among other things, that all NY landowners must put a fence around their pools or premises containing a pool. The text of that new "international" code was secret and unpublished before the last state Gubernatorial election, but can be purchased at this time from a commercial website for more than $20.]

Pursuant to New York's Recreational Use Statute (GOL s 9-103 ), an owner of premises, even if not "posted", "owes NO DUTY to keep the premises SAFE for entry or use by others" pursuing listed recreational activities by non-payers. The statute also states that an owner has "NO DUTY to give warning of any hazardous condition or use of or structure or activity on such premises." GOL s 9-103 The statute only permits liability at common law for a willful or malicious "failure to guard or warn."

"Under a Recreational Use Statute, recreational users are treated in the same manner as trespassers and thus the landowner owes them no duty of care."

"Landowners are not bound to issue warnings, inspect their property or repair dangerous conditions for trespassers. However, landowners do not have the right to intentionally injure trespassers, except to protect themselves or their property." http://cnrit.tamu.edu/cgrm/whatzhot/liabel.htm

However, there are many functional Socialists in the United States today, especially Judges and Attorneys in New York state (http://www.propertyrightsresearch.org/dear_fellow_property.htm), who think that these ancient laws, which respect the privacy and property rights of the individual land-owner, without assuring the perfect safety of a COMMUNity of defiant (criminal) trespassers who covet the use of other people's land, are "outdated" and should be changed to force landowners to make their yards and lands perfectly "safe" for all defiant (criminal) trespassers. Adolf Hitler is a leading expositor of modern socialist views on land-ownership:

"WHAT we [National Socialists] need if we are to have a real People's State is a land reform.... And land [Grund und Boden], we must insist, cannot be private property. Further, there must be a reform in our law. Our present law regards only the rights of the individual. It does not regard the protection of the race, the protection of the community of the people. ... A law which is so far removed from the conception of the community of the people is in need of reform."

Adolf Hitler, MUNICH, SPEECH OF APRIL 27, 1923 http://www.hitler.org/speeches/04-27-23.html

But, John Adams earlier warned Americans that:

"The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If 'Thou shalt not covet' and 'Thou shalt not steal' were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free."

In the minds of some, the resulting anarchy of Hitler's Germany and World War II proved that Adams was Right, and Hitler was Wrong.

Cautious landowners in the Socialist-leaning State of New York who intend to deter and prevent trespasses will post conspicuous "NO TRESPASSING" or "POSTED" signs, and/or signs specifically warning trespassers of non-obvious risks and/or that "physical force" will be used to repel or expel them. In Palumbo v. State, 487 So.2d (Fla. App. 1986), the plaintiff was injured when he entered a lake containing alligators. He alleged that he did not see the alligators and did not read the posted warning signs (telling him about the alligators and to keep out of the lake). In the opinion of the court, it was irrelevant whether plaintiff had actually read the signs. As long as he was given a reasonable opportunity under the circumstances to read the warning message, he would be charged with the knowledge that "would be obvious to him upon the ordinary use of his senses."

If the trespassers that a land-owner is interested in excluding typically defiantly enter by operating vehicles having rubber tires, the customary manner of defending the premises from such vehicular trespass is to deploy "Tire Spikes" to cause "severe tire damage" to the tires of trespasser's vehicles. "The Traffic Controller ... can be used as a free entrance or exit in your parking facility ... and includes 20 steel cut blade teeth." http://www.texassecuritygates.com/traffic.htm As noted before, "The ownership and possession of property confer a certain right to defend that possession, [including] a defense of it which [by necessity] results in the destruction of the means used to invade and interfere with that possession." People v. Kane, 142 N.Y. 366, 37 N.E. 104 and 131 N.Y. 111

Commercially manufactured Road Spikes like Antech Co's Guardian (http://www.antech.com/Guardian/TC/IG%20CB.html) or DeltaScientific's Sabre Tooth and DoorKing's Model 1610 traffic spikes (which can do much more tire damage than simple round nails) are currently employed at gates of the Wichita Mountains National Wildlife Refuge campgounds and at the Great Swamp Watershed in NJ (http://www.greatswamp.org/gsmappg1.htm), and at numerous parking lots, airports, and drive-in theaters and numerous private properties around the country.
See: DeltaScientific's SabreTooth
http://www.deltascientific.com/gallery13A1_1.htm ("The Sabre Tooth will puncture all pneumatic tires including steel belted radial and large truck tires.") "Provides extremely effective one-direction unmanned traffic control by puncturing the tires of errant vehicles." (http://www.antech.com/Guardian/TC/IG%20CB.html)
Doorking's Model 1610 traffic spikes:
PMG's "roadspike" product is marketed for "perimeter control" for security purposes:

Commercially manufactured caltrops (called "PORTABLE ROADBLOCKS") are recommended for "use with extreme caution and discretion" to "protect private property."

"The 4-wheelers are trespassing and causing damage and death to pets. Here in NC the police are slow to respond (often 2 hours later) they say its a low priority issue. I asked about the boards with nails. On your "privately" owned and "posted" land you can lay boards down and if they have nails in them well it is on your land. (officially). Unofficially if the trespassers get hurt most will sue. And with our "liberal" courts the landowner is about 75% sure to loose. Wish the odds were better."

Farmers beleaguered by ATV-trespassers seemingly have perfected a technique for manufacturing home-made "Traffic Controllers":
"I would start by posting the property 'Danger!!-- Private Property -- Keep Out!!' (big red letters are nice...) for a week or two, and then I would proceed to sink some nice holes in the ground on either side of the roads & drive. Fill 'em with concrete and set a hasp into it. Get a nice big board, like a 2x12 cut to span between the two hasps. Drive some nice ten-pennies into them thickly, and then put screw eyes at either end. Chain the boards to the hasps with padlocks. After they've lost a few tires, they may rethink their route. You can easily unlock one end and drag it at a right angle out of the way when you want to get thru for field work, then lock it back up at night. -- Julie Froelich, December 06, 2000."

Of course, if a New York land-owner personally discovers a trespasser entering or (or fixing his flat tire) within his Posted premises, he may only manually apply such physical force as is necessary and lawful (under the circumstances as prescribed in Penal Law Article 35) to exclude, expel, detain, or arrest (see below) him. Generally, the limit upon the physical force which may be manually applied by a land-owner upon the person of a trespasser is "Non-Deadly" Force, that is, "any degree of physical force [necessary] other than deadly physical force." 35.20(2).


In Black's Law Dictionary (7th Ed.), the definition of "Deadly Force" is "violent action known to create a substantial risk of causing death or serious bodily harm." Conversely, the definition of "non-deadly force" is "force intended to cause only minor bodily harm. 2. A threat of deadly force, such as displaying a knife." (e.g., constructive force).

New York's Penal Law implicitly defines non-deadly "physical force" as being "any degree of physical force other than deadly physical force." PL 35.10(6); 35.20(2). "Deadly physical force" is defined in Penal Law s 10.00 (11) as that which is "readily capable of causing death or other serious (i.e., non-temporary) physical injury."

It is generally Not a "Use" of "Deadly Physical Force" to manually Push, Shove or Strike (e.g., petty "slaps," or "light punches") or to otherwise subject another to physical contact, although there are many risks involved with making any physical contact with a person, and particular circumstances (e.g., a trespasser or a landowner standing at the edge of a cliff when shoved) can increase the risks. Note: a group of people "kicking and punching" a person on the ground has been considered to be a "use of deadly physical force." www.law.cornell.edu/ny/ctap/I96_0028.htm

It should be obvious that a NY landowner generally has the legal right to verbally "scare," "alarm", "severely annoy," offend, and/or to "threaten," a defiant trespasser when "necessary" and for the "legitimate purpose" of preventing or terminating what the landowner reasonably believes is or will be a defiant trespass, and that such conduct by the landowner cannot be deemed "Harassment" of any kind. PL.s. 35.20(2): See also: People v. Cifarelli, 115 Misc. 2d 587, 588; People v. Malausky, 127 Misc. 2d 84 (City Ct., Rochester, 1985); People v. Hogan, 172 Misc2d 279 (1997); People v Dietze (75 NY2d 47); People v. Scott, 79 N.Y.2d 474, 583 N.Y.S.2d 920 (1992) ("property rights reflect society's explicit recognition of a person's authority to act [ in a manner that ] may appear bizarre or even offensive" [in certain areas called "private property"] http://www.law.cornell.edu/ny/ctap/079_0474.htm )

The case of Maine v. Glassman, 2001 ME 91 (2001) teaches:
"Nondeadly force is defined as "any physical force which is not deadly force…
… In Williams, the defendant loaded a handgun, and while holding it, made verbal threats against another individual. The issue was whether the defendant's conduct was deadly force … or … justified use of nondeadly force….
"We determined that "the Legislature did not intend … `deadly force' to include a threatened use of such force," and concluded that "[t]he evidence showed, at most, that what the defendant did was to threaten the use of deadly force; that threat, as a matter of law, did not constitute `deadly force.'" … Subsequently, citing Williams , we have held that: "[a] threat to use deadly force is the equivalent of nondeadly force."

Contrary to Popular Myth, if an intruder in your unfenced back-yard or woods comes towards you brandishing a base-ball bat or the equivalent (e.g., an ATV, see http://billstclair.com/ferran/atvtrespass.html ) you may lawfully use any degree of non-deadly force (e.g., Pepper-Spray, or a Threat Of Force) necessary to stop and subdue him, and there is no duty to retreat unless non-deadly force will be insufficient to protect you and deadly force will be necessary. PL s 35.20(2). "There is no duty to retreat before using [non-deadly] physical force" for any of the purposes prescribed in PL 35.10(6), including a defense of one's person from an assault. In the Matter of Y.K., 87 NY2d 430, 434 (1996). See, http://www.law.cornell.edu/ny/ctap/comments/i96_0028.htm (Pepper-Spray *might* project to the intruder from a safe distance). Fortunately, there are inventions called "guns" which, because they can "project force" at a distance, are capable of harmlessly stopping trespassers (by means of intimidating and discouraging) even before they can reach and potentially do harm to landowner.

A New York land-owner has the legal right to brandish and display a gun (e.g., pistol, rifle, shotgun etc.) in a manner in which is NOT "readily capable" of accidentally discharging, to threaten, intimidate or scare the intruder (e.g., to force him to leave, or to stay). A landowner who is presently justified to use "physical force" but who is not in circumstances which justify a "use" of "deadly physical force" may lawfully "display" a gun in a threatening (menacing) manner if "necessary", but must be careful not to "endanger" the intruder or another, such as by pointing a loaded gun having a "hair trigger" and no Safety ON. See PEOPLE v. CHRYSLER, 85 N.Y.2d 413, 649 N.E.2d 1162, 626 N.Y.S.2d 18 (1995) (http://www.law.cornell.edu/ny/ctap/085_0413.htm)

"Reckless endangerment frequently involves the use of firearms, but no case has been found which holds that the mere threatened use of a gun is sufficient to support a reckless endangerment conviction and there are decisions holding that it does not (see, e.g., People v Richardson, 97 AD2d 693, 694). The cases generally require that the weapon be fired, or at a minimum, capable of firing …. Moreover, even if a gun is fired, that standing alone, is not enough to constitute commission of the crime. The use of the gun must create a risk. Thus, it has been held that shooting a pistol into the air ( People v Richardson, 97 AD2d 693, supra) or in the general direction of a roadway but considerably short of it ( People v Sallitto, 125 AD2d 345) does not constitute reckless endangerment. In this case, the evidence established that although defendant pulled the trigger his gun did not fire and thus his conduct could not create a risk…." People v. Davis, 72 N.Y.2d 32; 530 N.Y.S.2d 529 (1988)

In People v. Chrysler, 85 N.Y.2d 413, 649 N.E.2d 1162, 626 N.Y.S.2d 18 (1995) (http://www.law.cornell.edu/ny/ctap/085_0413.htm), the court indicated that pointing a gun that been "rendered inoperable," even temporarily inoperable, is not an endangerment/deadly force situation, but that pointing a gun with your finger on a hair-trigger, such that "any sudden movement by the complainant or defendant could readily have resulted in the accidental discharge of the weapon" does constitute deadly force/endangerment.

In People v. Magliato, 68 NY2d 24 (1986) the NY High Court explained the difference between "the mere display, [a] warning, or preparation for a deadly act" on the one hand, and conduct that "itself constitutes a deadly act." The Court explained that:
"Conduct intended merely to scare off an assailant [or intruder] or to keep him at bay may [or may not] place the assailant [or intruder] in such imminent danger of grave bodily injury or death that the conduct, without more [i.e., without actually firing a weapon], may constitute 'the use of deadly physical force.' ... Allegedly protective conduct in drawing and aiming a loaded and cocked weapon [having a "hair trigger" and NO SAFETY such that the "slightest movement" or "extremely light pressure" on the trigger could fire it] but not firing it intentionally ... unquestionably placed [the offender] in the imminent risk of grave danger [i.e., reckless endangerment] and constituted the 'use of deadly physical force.' ... The mere display or brandishing of a pistol may, perhaps, create an insufficient imminent threat to life to be considered the 'use' of deadly physical force. But, leveling a loaded pistol, with the cocked hammer set to release under the slightest pressure, and pointing it at another .... is conduct well beyond a [threat], warning or preparation for a deadly act. Such conduct itself, constitutes a deadly act."

Land-occupants of normal intelligence who are familiar with the mechanical operation of their particular gun will know whether the manner in which they are displaying, brandishing, or pointing a loaded gun in the presence of an intruder is a "use" of deadly physical force or merely a threat, warning or preparation to do so.

Pepper Spray, Tear Gas, and similar items may be lawfully possessed and used by Adults for Self-Defense purposes, including for "defense of premises" and other property.

New York Penal Law Article 265 generally prohibits the possession of virtually every thing that can be used by a person in defense of his person and property, but then prescribes various "exceptions" which indicate under what circumstances a possession is lawful. For example, a "switchblade" may be lawfully possessed "for use while hunting, trapping or fishing by a person carrying a valid [hunting/fishing/trapping] license." PL 265.20(6) (but presumably not while carried in Arbor Hill of the City of Albany) http://assembly.state.ny.us/leg/?cl=82&a=68

Pursuant to Penal Law section 265.20(14), an Adult may lawfully "possess" Pepper Spray or Tear Gas "for the protection of a person or property" and he CAN LAWFULLY "USE" Pepper Spray or Tear Gas "under circumstances which would justify the use of physical force pursuant to article thirty-five of this chapter."

Therefore, an Adult may lawfully carry and USE Pepper Spray "in defense of himself or a third person, or in defense of premises, or in order to prevent larceny of or criminal mischief to property, or in order to effect an arrest or prevent an escape from custody." PL 35.10(6).

Notwithstanding the land-owner's legal right to use "force" (i.e., the right to inflict "physical injury" including "substantial pain") understand that if a landowner actually causes any "physical injury" to a trespasser, the trespasser has a motive to hire a Attorney to sue the landowner to extort a settlement. If the intruder is a recreational user of land, the NY landowner might be permitted to invoke the NY Recreational Immunity Statute (GOL 9-103) to seek immunity from the suit for any "pain" or other "physical injury" lawfully inflicted pursuant to PL Article 35 as a lawful "use of" land. Justified Intentional injuries inflicted upon intruders have been held to be NOT a "willful or wonton" act in a California case, but rather constitute the lawful "use of" land. See, People v. McManus, 67 NY.2d 541 (NY 1986). The same principles, originally embodied in the Common Law of NY (NY Const. Bill of Rights Art. 1 s. 14) should still provide comparable immunity-from-suit in a case involving a use of necessary and lawful force upon a defiant intruder.
But, Judges are a law unto themselves when clear statutes are not provided by the People.


In the event that the defiant guilty intruder is an unknown stranger up to no good at all, a landowner or lawful occupant may choose to invoke his statutory right to "ARREST" the intruder and to hold him for, or to "deliver" him promptly to, the Police. CPL 140.30 et. seq.

The privilege of Citizen's Arrest in New York is granted by statute to "any person," and is a right that a land-owner enjoys IN ADDITION TO his privilege to use force "in defense of premises." (PL s. 35.10(6)) Therefore, the privilege of a land-owner to forcibly "Arrest" a guilty offender found entering or within his premises is IN ADDITION TO his general right to use physical "restraint or detention" of a person whom "he reasonably believes" is committing or attempting to commit any "criminal trespass." Private persons may only "arrest" those offenders who are in fact guilty of any "offense" (e.g., Trespass PL s 140.05 or ECL 11-2113).

New York Penal Law, sec. 35.30, titled "Justification; use of physical force in making an arrest or in preventing an escape", provides:
"4. A private person acting on his own account may use physical force, other than deadly physical force, upon another person when and to the extent that he reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he reasonably believes to have committed an offense [in his presence] and who in fact has committed such offense; and [after giving due notice of the grounds for the arrest] he may use deadly physical force for such purpose when he reasonably believes such to be necessary to:(a) Defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or (b) Effect the arrest of a person who has committed Murder, manslaughter in the first degree, Robbery, forcible Rape or forcible sodomy and who is in immediate flight therefrom.

Therefore, Pepper-Spray may be used "to effect an arrest or to prevent the escape from custody" even if the intruder has made no attempt or threat to harm the land-owner; And, THERE IS NO DUTY TO RETREAT (PL s 35.10(6)) while defending one's self WHILE ARRESTING a guilty trespasser (PL s 140.05), if one has complied with ALL the regulations prescribed in CPL Article 140 (e.g., 140.30-140.45). READ:

"The right of a law enforcement officer [or a private citizen] to make an arrest necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Frazell v. Flanigan, 102 F.3d 877 (1996), quoting Graham v. Connor, 490 U.S. 386, 396 (1989).

Read about a lawful citizen's arrest in Canajoharie, NY:

"A Canajoharie, New York, car thief's efforts were put in park after a potential victim pressed a shotgun to the criminal's throat. Daniel J. Stetin foiled the crime after awaking for work and discovering his car already running outside. He grabbed a shotgun and went to investigate, while his wife grabbed the telephone and dialed 911. Confronted by an armed and angry Stetin, the crook rested quietly on the ground and waited for police to arrive. (The Sunday Gazette, Schenectady, NY, 5/21/95)"


The right to damage the vehicle (instrument of flight) of an escaping criminal is recognized by NY Police Officers who have common sense. In the Year 2000 Annual Report of the New York State Police, the following article, titled "He Sure Picked the Wrong House," features a Hunter not unwilling to Arrest a criminal at Gun Point, and to Shoot as "necessary" to defend himself, and as necessary to prevent the escape of the Burglar/Thief:

"Trooper James M. Cavallero responded to a cellular phone caller who reported he was holding a burglar at gunpoint at his residence in Galen (Wayne County), Nov. 29. Upon arrival, he found the man holding a young burglar at bay with his shotgun. A Geo Tracker with two very flat tires was parked nearby. The man told Tpr. Cavallerro he had returned from hunting to find a strange car in his driveway and broken window near his back door.
Uncertain how many persons were in his house or it they were armed, he parked his truck in front of the Tracker, got out, loaded his shotgun with deer slugs and called out several times to anyone within the house to come out with their hands up. When a young man in his late teens came out, the homeowner told him to lie down on the driveway, which he did. But when the man went to call 911, the teen made a dash for his Tracker and backed it toward the homeowner, striking him with the vehicle [Note: at that moment, the escaping Burglar forfeited his Life. PL 35.30(4), and the hunter graciously spared that life]. The hunter fired one round into the rear tire as the suspect attempted to pull out, then a second into a front tire as the youth pulled out of the driveway. [The second shot at the tires was legally fired purely for the purpose to effect the arrest and prevent the escape, clearly not to prevent any injury to the defender] He then climbed into his own truck and gave chase until, unable to maneuver on his flat tires, the teen pulled over and gave up. The man flagged down a passing motorist who called 911 for him. In addition to the burglary, it was discovered that the teen was on probation for drug charges. Looking for some fast money, he had burglarized the first home that looked unoccupied, which proved to be his downfall. He was charged with 2nd Degree Reckless Endangerment, Burglary 2nd Degree, Possession of Burglar's Tools and Violation of Probation." NYSP Annual Report (2000) P. 18.

[Note: The Hunter-Homeowner's actions in firing twice at the tires of the vehicle (without significant actual risk of serious injury to the driver) were Entirely Lawful, however some Police Officers could interpret the case differently and charge him with Unjustified use of Deadly Force for firing the second shot. The damaging of the vehicle was entirely lawful, apart from any risk of injury to the driver. The Hunter-Homeowner's action in holding the escaping burglar at gun-point was a lawful use of non-deadly force, provided he kept his SAFETY ON and/or the gun had no hair-trigger]. The Hunter-Homeowner simply practiced "lawful menacing" for a justified purpose (e.g., Arresting a person who had committed an offense or two in his presence. PL s 35.30(4))

For more information about Citizen's arrest, see also:






A Private Citizen (e.g., landowner) and a Police Officer have exactly the same statutory authority to use "force" to arrest a person for "any offense" actually committed in his presence. Compare PL 35.30(1) with PL 35.30(4). A Private Citizen "may use physical force when and to the extent he reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody" just like a Police Officer may. The Private Citizen may use Pepper-Spray for this purpose. Similarly, while effecting an arrest, or detaining an offender in custody, a private citizen (e.g., landowner) "may use deadly physical force for such purpose when he reasonably believes such to be necessary to:(a) Defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force." In other words, a Private Citizen has NO DUTY TO RETREAT while performing a lawful arrest, just like a Police Officer acting under the same circumstances. Thus, it is wise and humane for a landowner to KEEP and to be skilled in the USE of Pepper-Spray so that an intruder subject to arrest can be subdued BEFORE HE CAN USE DEADLY FORCE AGAINST THE LANDOWNER. Thus, Pepper-Spray can save lives, even the lives of lawless intruders.


A defiant trespasser has no legal right to forcibly resist the non-deadly force (e.g., pepper spray) necessarily used by the landowner. The Justification statute that generally regulates the right of offenders to defend themselves is prescribed in PL sec. 35.15. That section prescribes that the trespasser may ONLY "use physical force upon another person [i.e., land-owner] when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of UNLAWFUL physical force by such other person." If the use of force (e.g., Pepper-Spray) used by a landowner is necessitated by the intruder's defiance, then the intruder has no legal right to believe that the use of the Pepper-Spray is a "use of UNLAWFUL physical force."

An intruder's THREAT to FORCIBLY resist a landowner's exercise of any of his statutory Rights under PL Article 35 is Attempted "Criminal Coercion" and is therefore a CRIME, potentially a Felony.  Penal Law Sec. 135.60, titled "Coercion in the second degree." Prescribes that:

"A person is guilty of coercion in the second degree when he compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he has a legal right to engage, by means of instilling in him a fear that, if the demand is not complied with, the actor or another will:… 
    1.  Cause physical injury to a person; or
    2.  Cause damage to property; or
    3.  Engage in other conduct constituting a crime;  ..."

Coercion in the second degree is a class A misdemeanor.   http://assembly.state.ny.us/leg/?cl=82&a=30

If the intruder's Threat is made for a more forward-looking purpose, such as to "permanently" appropriate a Valuable Possession of Premises to himself, the intruder may be guilty of attempted "Theft Of Premises" (e.g., Larceny By Extortion). http://assembly.state.ny.us/leg/?cl=82&a=34 

If the intruder's Threat is to immediately Use FORCE in order to "permanently" appropriate the Valuable Possession of Premises to himself or another, he may be guilty of attempted Robbery of Premises (i.e., attempted Forcible Stealing of the Possession of Premises).  http://assembly.state.ny.us/leg/?cl=82&a=37

Generally speaking, any unlawful force used or immediately threatened by the thief during the commission of a Forcible Stealing (i.e., Robbery) of "any thing of value" may be lawfully resisted by any degree of force "necessary," including Deadly Physical Force if necessary.  PL s 35.15(2)(b).

   In New York law, it IS legally POSSIBLE for "Premises" (i.e., any "Real Estate") or "valuable" Possession of Premises to be forcibly stolen.   Penal Law Sec. 155.05, titled "Larceny defined" prescribes that:

    "1.   A  person steals property and commits larceny when, with intent to deprive another of property or to appropriate the  same
to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof. [Incuding] By conduct heretofore  defined or known as common law larceny by trespassory taking.   ...
  "3.  "Deprive."  To "deprive" another of property means (a) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such  circumstances  that  the major portion of its economic value or benefit is lost to him, or  (b) to dispose of  the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property.
  4. "Appropriate." To "appropriate" property of another to oneself or a third person means (a) to exercise control over it, or to aid a third
person  to  exercise control  over it, permanently or for so extended a period or under such circumstances as to acquire the major portion  of its economic value or benefit, or (b) to dispose of the property for the benefit of oneself or a third person."

Penal Law section 155.05 prescribes that "Larceny includes a wrongful taking, obtaining or withholding of another's property, with the intent [to deprive another of property or to appropriate the same to himself or to a third person] (a) By conduct heretofore defined or known as common law larceny by trespassory taking…, or (e) By extortion"

In, People v. Podolsky, 130 Misc. 2d 987, 496 N.Y.S.2d 619, (N.Y. Sup. Ct. 1985), persons were CONVICTED of attempting to steal the owners' entire "right to possess and occupy their" premises, because the owner's "legal right to possess and occupy [premises] constitutes 'property' as defined in [New york] Penal Law." (i.e., the possession and use of premises is "a thing of value.")

Penal Law Section 155.00, defining terms in the Article on Larceny, provides "The following definitions are applicable to this title: 1. "Property" means any money, personal property, real property, computer data, computer program, thing in action, evidence of debt or contract, or any article, substance or thing of value …."

Similarly, Penal Law Section 480 prescribes that "'Property' means real property, personal property, money, negotiable instruments, securities, or anything of value or an interest in a thing of value."

New York General Obligations Law § 9-103 specifically recognizes that a "recreational use" of premises is a thing of value for which "consideration" (e.g., money) can be expected to be demanded by the land-owner. The statute recognizes the following recreational uses of private property as being things of value for which compensation may generally be expected to be demanded by a landowner:  (1) hunting; (2) fishing; (3) organized gleaning: (4) canoeing; (5} boating; (6) trapping; (7) hiking; (8) cross-country skiing; (9) tobogganing; (10) sledding; (11) speleological activities; (12) horseback riding; (13) bicycle riding; (14) hang-gliding: (15) motorized vehicle operation for recreational purposes; (16) snowmobile operation; (17) cutting or gathering wood for non-commercial purposes: and (18) the training of dogs. http://caselaw.lp.findlaw.com/nycodes/c49/a28.html

Another example of a case in which the defendants' conduct probably constituted Theft of Premises By Extortion (a conspiracy among Police Officers to Steal a House) is discussed at: http://billstclair.com/ferran/markferran2.html 

"A person is guilty of ROBBERY when 'he uses or threatens the immediate use of physical FORCE upon another person for the purpose of * * * [compelling] the owner of such property * * * to deliver up the property * * *".  Under former law, it was robbery whenever a person obtained property by way of a threat of injury "immediate or future" (former Penal Law, s 2120; see People v Thompson, 198 NY 396). The present statute, however, requires that the threat be of the "IMMEDIATE use of physical force" upon another person (Penal Law, s 160.00). The obtaining of property by means of a threatened physical injury in futuro is no longer robbery, but larceny by extortion (Penal Law, s 155.05)" People v. Woods, 41 N.Y.2d 279; 360 N.E.2d 1082 (1977).

"While a 'larceny' has been committed when a person 'with intent to deprive another of property or to appropriate the same to himself or to a third person * * * wrongfully takes, obtains or withholds such property from an owner thereof' (PL s 155.05, subd 1), a "robbery" has been committed when "in the course of committing a larceny [a person] uses or threatens the immediate use of physical force upon another person" (PL s 160.00). A robbery is thus a larceny which has been committed with the use of or the immediate threat of the use of physical force. The peril to the victim and, therefore, to society is clearly greater when violence is used, or threatened to be immediately used, in the commission of a crime."  People v. Banks, 55 A.D.2d 795, *; 389 N.Y.S.2d 664; (1976).

"The defense of justification (NY Penal Law art. 35) affirmatively permits the use of force under certain circumstances" McManus, (above)

Penal Law section 35.25 prescribes, in pertinent part, that "A person may use physical force, other than deadly physical force, upon another person when and to the  extent  that  he reasonably believes such to be necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission by such other person of larceny...."

Penal Law section 35.15 effectively ordains that:  "A person may... use DEADLY physical force upon another person"  "when and to the extent he reasonably believes such to be NECESSARY to defend himself or a third person from what he reasonably believes to be ....  a kidnapping, forcible rape, forcible sodomy or ROBBERY; or (c)  ... a burglary...."  The law "limits the felonies on the person, commission of which justify resistance by deadly physical force, to kidnapping, robbery, forcible rape and forcible sodomy."  McKinney's Practice Commentaries, PL s 35.15 (1975).  ["Burglary" is classified as a felony against Possession of a "Dwelling" that justifies resistance by necessary deadly physical force.  PL. 35.20(3).]

Arguably, a case where the trespassers' conduct may reasonably have appeared (from the land-owner's perspective) to be a Forcible Stealing of Premises (Robbery) is posted online at: http://www.tribune-chronicle.com/news/story/03602002_new11.asp  (A Farmer stopped a group of habitually trespassing ATV-riders who coveted the use of his land, and told them to leave. He was beaten up.  ''It's a blatant disregard for other people's property is what it is.  You can't even enjoy your own property.'')  See also many other similar cases at http://billstclair.com/ferran/atvtrespass.html   In such a case, in which an intruder with an apparent intent to appropriate to himself and/or others a valuable possession and occupancy of land ("permanently" or for an "extended period" of time), are apparently about to use unlawful physical force to compel or to induce the land-owner to then and FOREVER refrain from exercising his right to exclude them, the law of New York state might someday be expressly judicially interpreted to recognize that the land-owner's use of any Force "Necessary", including the use of Deadly Physical Force, necessary to resist the impending assault is Justifiable as Resistance to Robbery.  PL 35.15(2)(b).  

However, the Use of lawful and necessary Deadly Physical Force against a person reasonably suspected of forcibly stealing Land, Real Property, or a Valuable Possession of Premises (Robbery) is susceptible of being interpreted by some as an unlawful use of deadly force against a mere criminal "trespasser."   But the act of Trespassing should not be understood to give a defiant Trespasser a privilege to use his trespass as an opportunity to Forcibly Steal the Premises from the lawful occupant on a more "extended" or "permanent" basis.  There are few cases examining that distinction in the context of "Theft of Premises" and there are no known cases discussing in express terms a land-owner's use physical force to resist a "larceny" or "robbery" of his premises.  Generally speaking, given the intellectual challenges of the subjectmatter and the prejudices of an increasingly Socialist-leaning Society in New York, Police Officers and District Attorneys will find it much more convenient to prosecute a land-owner for using Force, especially Deadly Physical Force, than they will find prosecuting criminals for Larceny of Premises or Forcible Stealing (Robbery) of Premises. 

Some Police Officers and District Attorneys are so poorly educated in New York state that they do not even understand that land-owners have the legal right to "approach" and "confront" defiant trespassers, let alone the affirmative legal right to push them, shove them or otherwise forcibly expel or to arrest them.  Accordingly, it is important for land-owners in New York state to educate their local Police Officers, District Attorney, Justice of the Peace in advance of future problems with trespassers.

Respect the Law.

Respectfully Submitted,
Mark R. Ferran BSEE scl JD mcl
Read other writings of M.R.F at

February 18, 2003

Please Post, Forward, or Print & Pass on...TO EDUCATE NY NEIGHBORS, COPs, JPs, DAs, ATTORNEYs, and The Press. Life, liberty, and property may depend upon your doing so. Their Ignorance is a Landowner's Peril !!!