Property Crime, Trespass and the right to protest in Massachusetts

October 1, 2011

802454_no_tresspassing.jpgYesterday, twenty-four people were arrested in Boston for the crime of trespass in Boston, Massachusetts. Thousands of protesters congregated near the offices of Bank of America to protest what they believe to be unfair bank foreclosure practices by BOA. Those arrested spent several hours at the police station being booked and processed for later arraignment in court. Although a law enforcement source was quoted in the Boston Herald that the individuals arrested are not likely to face "serious trouble" the crime of trespass is a misdemeanor property offense punishable by a fine of $100.00 or up to thirty days of incarceration, or both. A trespass arrest and conviction, under current law, will remain on a person's criminal record history (CORI) and would be visible to potential employers. Although the crime of trespass is a relatively minor offense when compared to other property crimes, it is still taken seriously by prosecutors and the resolution of the case depends upon a number of factors including whether or not you have a prior criminal record for trespass or other crimes. Therefore, it is important to contact an experienced Boston, Massachusetts criminal defense trespass attorney right away to defend the case. An knowledgeable and experienced Massachusetts criminal defense lawyer handling a trespass case will also explore pretrial disposition options for the client that may include dismissal of the charges prior to arraignment. Under such a resolution, the charge would not be listed on the defendant's CORI.

Under Massachusetts General Laws Chapter 266, Section 120, in order for a person to be found guilty of trespass the prosecutor must prove beyond a reasonable doubt that he or she, without right, entered or remained in a building or on the land of another. The prosecutor must also prove by the same high standard that the individual was forbidden to enter or to remain on the property by a person in lawful control of the premises either directly or by means of a posted no trespass notice. The first part is met by evidence that the individual either entered, in this case, on the bank's premises without permission, or failed to leave the bank after being requested to do so. If there was a posted no trespass notice at the bank the prosecutor is not required to prove that the defendant actually saw a notice prohibiting trespassing. The Commonwealth is only required to prove that there was a reasonably distinct notice forbidding trespass, and that it was posted in a reasonably suitable place so that a reasonably careful trespasser would see it. If the bank did not have a posted notice there must be proof that the owner directly prohibited entry to the specific individual in question.

There are a number of Massachusetts trespass defense strategies that can be successfully employed by a good defense lawyer to avoid a trespass conviction and such legal tactics depend upon the facts of each case. In this particular case it may be very difficult for the Commonwealth to prove a trespass with so many people crowded into a relatively small area in downtown Boston in what was otherwise a peaceful protest according to the police. The protest appeared to happen quickly with a large number or people and this raises several basic questions. Where was the posted notice? Is it likely that a reasonable person would see a no trespass notice with so many other people around? If there was no posted notice did the owner or other authorized person having control of the premises directly forbid each individual from entering or remaining on the premises?

The Law Office of Patrick J. Murphy has the experience and expertise to handle your criminal trespass case in Massachusetts. Attorney Murphy would be glad to speak with you to discuss the specific facts of your trespass case. Call our office today at 617-367-0450 for a free consultation or contact us on the web and Attorney Murphy will respond promptly to your legal question.

Sources: Massachusetts District Court Jury Instructions
The Boston Herald