Subj: The ATV Trespass Problem
From: Mark Rock Ferran BSEE scl (RPI '92) JD mcl Counselier@aol.com
In the Albany (NY) Pine Bush, trespassing ATVs kill the wild "bushes" called wild Blue Lupine, and so they ultimately kill the endangered Karner Blue Butterfly that depend on the bushes. In 1998, the Albany (NY) Times Union (article below) described the "serious" ATV problem in the Albany Pine Bush ecosystem that supports the endangered Karner Blue Butterfly. Since that time, hundreds of thousands of new ATVS have been sold in the United States to people who own no land of their own to ride upon, and ATV sales are on the increase.
"The Karner blue butterfly is slowly losing its fight to survive in the Albany Pine Bush Preserve, one of the species' last remaining natural habitats in the United States. The killer: humans. The latest tool of destruction: the all-terrain vehicle. The azure-winged butterflies, about the size of a quarter, are being threatened by burly ATVs illegally churning through the property, Pine Bush officials said Tuesday. As they pop wheelies and spin doughnut-shaped grooves into the earth, ATV riders are also mowing down the wild blue lupine, the only plant that Karner caterpillars eat, said Preserve Steward Joel Hecht. ``If you impact the plant, you're going to directly impact the Karner blue butterfly,'' he said. This region was once home to hundreds of thousands of the flying blue lepidoptera... Now, there are only a few hundred in the Pine Bush. ... The species is listed by the federal government as ENDANGERED. ATVs aren't permitted in the 2,400-acre Pine Bush, said Department of Environmental Conservation Forest Ranger Joseph Hess, the lone DEC officer patrolling the preserve. But morning and weekend joy riders ignore posted signs. Anyone caught riding a vehicle over Pine Bush land could face a $100 fine and up to 15 days in jail, Hess said. ... 'Without intervention, they will be lost.''"
Albany (NY) Times Union, September 2, 1998, by Paul Zielbauer. (Title/subtitle: "ATVS A MENACE IN KARNER BLUE'S BACK YARD Vehicles threaten butterfly's food source in Pine Bush, officials say")
See also "GOODBYE KARNER BLUE"
("New England's only wild population" of the endangered Karner blue butterfly "appears to have died out")
The "lone ranger" in the Albany Pine Bush has not been cloned, nor has he evolved the super-human ability to enforce the law in all parts of his territory at the same time. But the ATV industry has been busy flooding the land with ATVs. ATV manufacturers have knowingly placed ATVs into the hands of people ready willing and able to intrude upon any and "all" unguarded public or private land.
"Industry-wide ATV retail sales increased during the first quarter [of 2001] in spite of the concerns of a slowing economic environment." (April 17, 2001) http://media.corporate-ir.net/media_files/NYS/PII/reports/pii_010514.pdf
"American Honda's ATV sales also soared in 2000, ending the year at 211,152, an increase of 29.6%. Once again Honda exceeded the ATV industry's healthy growth rate of 18.8%, strengthening Honda's already dominant number one market share position of 32.6%."
Dealers for Arctic Cat Corporation advertise: "2002 Arctic Cat 90 -- New this year!! A smaller ATV just for kids!!" http://www.livingstonsarcticcat.com/Arctic_Cat_ATV_four_wheelers.htm
"The problem isn't the guy who rides an ATV around his yard and uses it to haul a few trees or work around the farm, it's the yahoo mentality out there that you can rip and roar with these things and the more you tear up someone's property the more fun it is"
New York's RULES FOR OPERATION OF ALL TERRAIN VEHICLES are prescribed in the Vehicle and Traffic Law, including section 2403. http://caselaw.lp.findlaw.com/nycodes/law128/art82.html
The NY Rules (statute above) and brochures distributed by the NY DOT state:
"To operate an ATV on private land, you must have permission of the land owner or lessee. If you receive permission, make sure you know the boundaries of the property, and respect any special restrictions or requests of the land owner."
The laws of New York state, though sufficient on their face, have failed to curtail ATV trespass by a hard-core subculture that is growing in numbers. Public police forces generally (and perhaps properly) place greater priority on dealing with other offenses (such as theft of ATVs). The People of the state of New York simply could not afford to pay for the amount of Police time that would be necessary to control the ATV trespass problem. Not even for the sake of protecting the endangered Karner Blue Butterfly has Albany or the state of New York increased the police presence in the Pine Bush, and 'Without intervention, they will be lost." Police resources are limited. Albany's Common Council President, Helen Desfosses, explained: "In addition to Albany’s important efforts to get more police onto the streets, .... citizen involvement is crucial to crime prevention." (http://www.albanycouncilpres.com/Articles/albany-future.shtml) It is obvious to many that if the ATV problem is to be effectively controlled, citizen-enforcement of the law must be undertaken by those who recognize their civic duty, and who are informed of the privileges and risks of volunteering. The risks of such personal confrontations are great. Many Police Officers have been run-over by ATVs while trying to stop or apprehend ATV offenders. Even the youngest ATV riders are fully aware that ATVs can be used as Dangerous Instruments useful for unlawfully resisting arrest and escaping from custody.
"Man on ATV shot after running over officer" (in Florida)
http://www.polkonline.com/stories/070600/sta_man-shot.shtml (AP 7/06/2000)
"Teen Arrested For Running Over Deputy: A 16-year-old accused of running over a Davidson County deputy with an all-terrain vehicle was arrested. Investigators said that Deputy Chris Stillwell was attempting to stop the teenager when he was struck by the vehicle. The teen was reportedly the driver of the ATV. There is no word on the condition of the deputy. The teen is in the Davidson County Jail under a $75,000 bond."
Yahoo News, October 11, 2001 (No longer posted on web) ThePiedmontChannel.com
(Landowner run over by 4-wheeler)
(Charges filed in ATV chase case)
"ARROWHEAD LAKE - A 19-year-old man, who allegedly led Arrowhead and Locust Lake Village development security on an ATV chase, has been charged with two counts of criminal trespass and two counts of operating an ATV on private property."
(Blown engine ends ATV chase)
Audubon Magazine reported:
"The 500 combat missions flown by Colonel George Buchner over Vietnam didn’t prepare him .... Buchner found trespassing ATV operators popping wheelies in his private trout stream. When he demanded their names, one rider dismounted and attacked him, breaking his nose. When he fenced his posted stream and property, ORV operators cut the wire and pulled the stakes. When he reinforced the stakes with cement, they knocked them down. … [H]e received death threats, his streetlights were shot out, his mailbox smashed, his driveway seeded with broken glass, the eight-strand fence on his Christmas tree farm cut in 88 places, and his wife run over. "Robin was screaming," he said, "and the guy calmly cranked up his machine and finished running over her. He’d come through multiple barriers, multiple posted signs, three fences, and a gate. She had a hematoma extending the length of her leg." In July 1996 Buchner confronted two trespassing ATV operators, one of whom knocked him down. "Basically, [ATV]s ran me out of Michigan," Buchner told me from his Arizona home."
New York state statutes provide ample power to landowners to exclude ATV trespassers and to volunteers to defend public and private property from damage, and to make arrests:
"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."
NY Penal Law 35.10(6) http://assembly.state.ny.us/leg/?cl=82anda=12
Fortunately, NY law provides alternatives to personal confrontation. The highest Court of New York has declared that landowners have a common law privilege to "destroy" the "instrument of trespass" (e.g., vehicle) used by "defiant trespassers" to enter posted private property. People v. Kane, 142 N.Y. 366, 37 N.E. 104 and 131 N.Y. 111. Accordingly, NY Penal Law Sec. 35.05 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 ... authorized by law...." Therefore, it seems that it is lawful for landowners in NY (and other common law jurisdictions) to defend their premises by deploying nails-in-boards, caltrops, roadspikes, etc. as is customarily done in other states, and at parking lots in NY state. Road spikes, caltrops, spiked fences, etc. deployed at a perimeter are generally considered to be "non-lethal" force:
http://hv.greenspun.com/bboard/q-and-a-fetch-msg.tcl?msg_id=004B4h (After "Yet another death", farmers/landowners deploy nails-in-boards to fight ATV trespass)
As noted, peaceful landowners in the US are stopping trespassing AT-Vehicles in the basically the same way that Police, parking lot owners, and drive-in movie theaters stop other types of vehicles, by lawfully placing NAILS (road spikes) in their paths.
Farmers seemingly have perfected the technique:
"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 and 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."
Commercially manufactured Road Spikes like Antech Co's Guardian (http://www.antech.com/Guardian/TC/IG%20CB.html) or DeltaScientific's SabreTooth 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 (http://pixie.simplenet.com/motorcycles/rcr-iv/reports/rep100.txt ) 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: http://www.agwaccess.com/doorking2.html
PMG's very expensive "roadspike" product has also been marketed for "perimeter control" for security purposes:
Comercially manufactured caltrops (called "PORTABLE ROADBLOCKS") are recommended for "use with extreme caution and discretion" to "protect private property." http://www.spymall.com/catalog/gadgets-index.htm
"NAILS IN THE PATH WORK GREAT."
"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."
A California decision offers a ray of hope with regard to landowner liability issues. A CA court construing language in a landowner immunity statute similar to language in NY General Obligations Law sec. 9-103, concluded that a justified use of physical force against a trespasser was a lawful "use of" land and therefore not a "willful" act depriving the landowner of immunity. Similarly, the NY Court of Appeals has decided that the placement of a brightly painted cable stretched across a private road to exclude trespassers is a lawful condition or use of land. Spiked fences are common in NY cities.
Concealment of nails-in-boards on private property may be necessary, since ATV Trespassers illegally destroy gates, fences, log-barriers, and anything else that is placed by landowners to keep them off of private property:
"ARSON. A male on Rutland Way, Stephentown, said his vehicle, which was parked along a trail to deter ATV use, was damaged by fire. Officer: Trooper Steve Kovaleski." Albany (NY) Times Union, Police Blotter (Wed. July 28, 1999 p. F2)
The ATV Trespass problem is serious and pervasive throughout the US.
"The Forestry Service is putting up fencing and closing trails to try to keep the ATV crowd from making "spider-trails", I wish they would realize that they are the reason so many of the trails and private lands are being closed. It is not all of them but it seems like a large majority of the ATV crowd has no respect for the land that they ride." http://www.psychowheeling.com/custom4.html
ATV rider bragged to friends about setting farmer's barn on fire.
Farmer considers posting land after strawberry crop is burned by ATV trespassers:
"Underwood and fire officials believe the culprits accessed the property using an ATV.... There were ATV tire tracks leading to and from his property. The farmer has had problems with ATV's riding through his strawberry fields before, but until now has refused to deny anyone passage across his property to adjoining land. ... 'Over 99.9 percent of the snowmobile people are great. They generally police themselves. ATV users -that's a different story.' ... All "NO ATV" signs will remain where they lay, said the landowner, simply because the abuse is a year-round event. 'I've called several wardens in the past to report ATV-abuse problems and the response time was at least five hours.'"
ATV trespassers have torn down fences, punched landowners in the face, and run completely over a landowner's wife! ATV trespassers Kill cats, geese; destroy trees, crops, etc. ATV trespassers tear up land, topple power poles, close snowmobile trails, chase landowners out of their home states, and burn their cars.
http://webusers.warwick.net/~u1001223/Articale1/Article1.htm (ATVs INVADING)
(Landowner is fed up with the ATV rodeo that has wrecked his lawn. "They've got no respect for people's property now.)
http://www.pocahontastimes.com/news0426.html#7thstory (Town overrun by ATVs)
(ATVs turning town into 'war zone')
(EFFECTS of ATV'S on HIKING TRAILS and WILDERNESS AREAS)
(Nature pays the price as ATVs hit Minnesota's woods)
(ATV Trespass damage in VT municipal forest)
(Snowmobilers say ATVs are tearing up trails)
The National Forest Service has come under criticism from constructing "tank traps" to exclude motorized vehicles (e.g., ATVs) from the lands at Targhee that it has been charged with securing against such trespass. "the obstacles bear an uncanny resemblance to those used in World War II and the Persian Gulf to stop American armored vehicles." "the Targhee Tank Traps [are] earth berms up to 15 feet high, backed by pits up to 15 feet deep" "The traps were authorized by the local Forest Service administrator, Jerry Reese, following Dombeck's directive to restrict public access to public lands in the national forests." "The dangers posed by the traps were made clear in a field hearing of Chenoweth's Forestry and Forest Health Subcommittee, held February 13 in Rexburg, Idaho. At that hearing, Brent Robson, a county commissioner from Tetonia, Idaho, testified to his potentially life-threatening encounter with one of the tank traps. Robson, an experienced snowmobiler, told the committee he was at the front of a small group of snowmobiles when his vehicle was violently thrust up into the air. He came to rest in a pit with a broken back." http://www.heartland.org/environment/may99/traps.htm
According to Representative Helen Chenoweth "The surface of some roads was ripped to a depth of three feet to prevent motorized access. Nearly 400 miles of roads were obliterated by placing six to eight foot high earthen barriers in the roads" http://commdocs.house.gov/committees/resources/hii55181.000/hii55181_0.htm
The berms were installed after "gates" proved ineffective to prevent ATV "trespass."
CITIZENS ARRESTING ATV TRESPASSERS IN NY
Citizen's Arrest in NY is authorized and regulated by NY Criminal Procedure Law Article 140 and the use of force and even deadly force for the purpose of effecting such an arrest and maintaining the safety of the citizen performing it, is authorized by Penal Law section 35.30(4) and 35.10(6). See statutes at: http://assembly.state.ny.us/leg/?cl=82anda=12
New York Criminal Procedure Law (CPL) sec. 140.30 (1) provides:
"Subject to the provisions of subdivision two, any person may arrest another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter has in fact committed such offense in his presence."
In NY, private citizens have the "same authority" to make arrests of factually "Guilty" offenders as do police officers. Police have a legal duty to make arrests. Private Citizens have a civic and moral duty to make arrests. It is however extremely important to completely understand every limitation and all the regulations and duties applicable to arrests by private citizens as prescribed in Criminal Procedure Law Article 140. http://assembly.state.ny.us/leg/?cl=25anda=22
It is very important that one undertaking a Citizen's Arrest also have a thorough knowledge of the Laws which define arrestable offenses, since private citizens may only arrest factually "guilty" offenders, and may not arrest merely upon reasonable belief nor probable cause.
See NY RULES FOR OPERATION OF ALL TERRAIN VEHICLES
A violation of these Rules is an "offense" for purposes of authorizing a private citizen to arrest an ATV operator without a warrant. See, VTL sec 155 and PL 10.00(2)
"For purposes of arrest without a warrant, pursuant to article one hundred forty of the criminal procedure law, a traffic infraction shall be deemed an offense." VTL sec 155
In general, the word " 'Offense' means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentalityauthorized by law to adopt the same." PL 10.00 The term "offense" therefore means any felony, misdemeanor, violation, or traffic infraction defined by the law of the state of New York. Penal Law sec 10.00 (1-6). http://assembly.state.ny.us/leg/?cl=82anda=5
Landowners in states like NY where citizen's arrest of ATV trespassers is lawful generally discover that ATV riders who will ride on any "new trail" they hear about without knowing the owner or even asking for permission will usually resist arrest, and try to flee or run over the landowner: http://www.atvtime.com/steelriders/Features/Others/DoWhat.html
What happens in NY when the ATV operator who is engaged in an arrestable offense or is fleeing from the scene resists a lawful citizen's arrest?
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, see CPL Article 140] 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."
"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 (7th Cir. 1996), quoting Graham v. Connor, 490 U.S. 386, 396 (1989).
When arresting offenders riding ATVs, it is important to be aware that the ATV can be used as a dangerous instrument against the person making the arrest.
In NY, forcible "conduct" such as "Menacing" (PL 120.14), "which would otherwise constitute an offense is justifiable and not criminal" when committed "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 inorder to effect an arrest or prevent an escape from custody." Penal Law 35.10(6).
Penal Law sec 120.14, titled "Menacing in the second degree" prescribes:
"A person is guilty of menacing in the second degree when [without justification]:1. He or she intentionally places or attempts to place another personin reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm."
However, many states, including NY, while not authorizing the USE of Deadly Force in defense of possession of land (i.e., premises), nevertheless do provide that an occupant may use necessary non-deadly force (including "threatening" to use deadly force, i.e., "menacing"). For example, Arizona's statutes explicitly authorize landowners to "threaten to use deadly physical force" in defense of land. Arizona Revised Statutes 13-407.
Similarly, New York statutes provide that a person "may use any degree of physical force, other than deadly physical force, which he reasonably believes to be necessary for" the listed purposes e.g., defense of premises, persons, arrest.
NY Penal Law sec 10, Definition (11) provides: ""Deadly physical force" means physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury."
Menacing with an unloaded deadly weapon, or with a dangerous instrument, and even firing a warning shot AWAY FROM the trespasser, and threatening to use deadly force, etc. are not Deadly Physical Force (because each is not endangerment). Therefore each such act would be lawful in NY when such a use of non-deadly force is necessary and lawful under article 35 of the NY Penal Law. See:
People v. Davis, 72 N.Y. 2d 32, 530 N.Y.S.2d (1988).
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)
NY Case in point:
"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)"
There was no apparent USE of "deadly physical force" here (unless the shotgun had a hair-trigger and/or the safety was OFF), only a lawful and apparently necessary and sufficient "threat" to use such deadly force. Note: If the man who owned the car stood in front of it, and if the thief had attempted to escape by driving over the car's owner, the car's owner would have had the right to prevent that escape involving vehicular assault, by using deadly physical force (i.e., shooting). This is because the law, in support of citizens who place themselves in positions of peril to arrest guilty offenders, provides that the private citizen "may use deadly physical force for such purpose [to effect an arrest or prevent an escape] 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." There is no duty to retreat while performing a citizen's arrest. PL 35.10(6); 35.30(4).
For other interesting articles about purported citizen's arrest see:
(ATV posse traps man, rescues girl)