What are Some Defenses to Civil Trespassing?
While you can be criminally charged for trespassing, you can also be sued civilly for trespassing under tort law. Most commonly, civil trespassing will refer to interference with another person’s land or personal property (also known as “chattel”).
If you are sued for trespass, you may have some defenses available to you. These defenses include consent, public necessity private necessity and/or privilege.
- When is the Consent Defense Available?
- When is the Public Necessity Defense Available?
- When is the Private Necessity Defense Available?
- When is the Privilege Defense Available?
- Should I Contact a Lawyer if I am Sued for Trespass?
When is the Consent Defense Available?
One common defense that can be used if you were sued for trespass is that you were given consent by the owner of the land or property.
Consent can be given to you by both words and actions. For example, if someone tells you that you can enter their property, you can argue that you were given consent. Additionally, an example of an action that may give you consent is if someone waves you onto their land.
You may also be able to argue consent if the owner of the land or property did not take any action or remained silent when you entered their land or used their property. However, this is a harder defense to argue and prove.
Lastly, keep in mind that your consent argument will be determined to be invalid if it was induced by fraud or was given by someone who is incompetent, intoxicated or a minor.
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When is the Public Necessity Defense Available?
If you have interfered with someone else’s land or chattel because of a public necessity, you will have a defense to trespass. To invoke this defense, the situation that triggers your action must be:
- An immediate and imperative necessity; and
- An act that is done in good faith for the public good.
An example of this would be a firefighter entering another person’s land to help prevent a fire from spreading throughout the neighborhood.
The rationale is that when something threatens the whole community and the public interest is involved, you are able to take action to protect the public interest. However, understand that this defense is not available if the act becomes unreasonable under the circumstances.
When is the Private Necessity Defense Available?
If you have interfered with someone else’s land or chattel because of a private necessity, you will also have a defense to trespass. The privilege of private necessity is only allowed when your actions are necessary to protect:
- Any person from death or serious bodily harm; or
- Any land or chattel from destruction or injury.
Thus, the rationale behind this defense is that the preservation of life is more important than property rights. For example, if you are running away from someone who is trying to shoot you and enter another person’s land, you could argue private necessity.
When is the Privilege Defense Available?
Lastly, you may argue that you had privilege to trespass if you are attempting to recover land or chattel that is rightfully yours. Trespass is allowed in this situation if the reason you do not have your land or chattel was:
- The landowner’s fault;
- The chattel owner’s fault; or
- An act of god, such as a storm or flood.
Should I Contact a Lawyer if I am Sued for Trespass?
If you are sued for civil trespass, you should speak to a local property lawyer to determine if you have any of the above defenses available in your situation. A lawyer can help you formulate a strong defense and represent you in court.
Criminal trespassing is the legal term for trespassing onto someone else’s land or using that person’s chattel without permission. On the whole, law enforcement agents such as sheriffs, park rangers and police officers enforce the laws for trespassing. In cases where charges are brought against you for crossing onto another person’s land, you do have the right to defend yourself.
There are several defenses to trespassing. One is that you have consent to be there. Here’s an example of how this may come up. Perhaps the homeowner is not at home, but you have gained permission to enter the property. If a neighbor sees you and believes you’re trespassing, he or she may call the police or local sheriff. While you may be arrested initially if the homeowner is not able to be contacted, it’s likely the charges would be dropped as soon as the homeowner cleared up the confusion.
Public necessity is another good defense for trespassing. This is why you have to trespass to protect the public due to an emergency. For instance, if there is a violent storm headed toward you and it’s faster to cross a person’s yard to get to shelter than it is to walk around the land, you may be in the right. The important thing to remember in that case is that the trespassing must be reasonable.
Your charge for trespassing may be due to a misunderstanding, immediate need to cross the land or for other reasons. Your attorney can help you protect yourself and explain the situation, so you can move forward with your life.
Source: FindLaw, “Are There Defenses to Criminal Trespassing?,” Aditi Mukherji, JD, accessed June 20, 2017
October 22nd, 2021 by mikeglaw | Posted in Court Hearings, Criminal Defense |
Criminal trespassing of private property in Florida law is a serious crime, as it can lead to probation, fines, or significant jail time. It can also stay on your public record and appear in background checks, posing as a roadblock for things such as hiring or leasing.
If you have been charged with trespassing, it is in your best interest to do what is necessary to beat this criminal offense charge.
In this guide, our team at Mike G Law will cover how to beat a criminal offense, such as criminal trespass. We will use our extensive experience and knowledge to educate you on everything you need to know about the criminal tresspasing and inform you of what to expect along the way to dropping those criminal trespass charges.
How Is Trespassing Defined in Florida Law?
According to Florida law, criminal trespass is when a person willfully enters another person’s property without receiving an acceptable invitation or acquiring the proper licensing or authorization. Criminal trespassing of a property can also occur if a person enters someone else’s property with permission of property owners but refuses to leave even after the rightful occupant’s or owner’s verbal warning to do so.
What Is the Punishment for Those Charged With & Found Guilty of Criminal Trespass?
The punishment for individuals charged with and found guilty of trespassing charges will vary depending on the circumstances of this legal issue and the outcomes of a civil lawsuit.
Florida law classifies criminal trespass on private property other than a structure or conveyance as a first-degree misdemeanor crime. This charge can result in up to one year of jail time and a $1,000 fine.
The punishments for first-degree trespass will become much more severe based on the specifics of the property crime and the defense that the person convicted is willing to find. For example, if the individual was carrying a firearm or possessing another dangerous weapon around another person’s home or property, they will face more serious consequences. An individual would also face harsher punishments if they were hunting an endangered game or fur-bearing animal.
The location of the trespassing crime can also impact a person’s punishment. If an individual got caught trespassing in any of the following areas, a court could upgrade the trespassing charge to a third-degree felony:
- An agricultural chemicals manufacturing facility
- A domestic violence center
- An agricultural site for research or testing purposes
- A posted construction site
- A power plant
Based on Florida state law, an offender who commits a third-degree felony can face up to five years of probation, five years of jail time, or a $5,000 fine for their crimes.
It is essential to enlist the services of an experienced criminal defense attorney to achieve the best possible outcome. Without the professional legal help of the right lawyer, an individual may face severe punishments for trespassing that were otherwise avoidable. It is best to contact an experienced criminal defense attorney like Mike G, who can help you understand your situation and follow the best course of action to drop those criminal penalties against you.
How to Get a Trespassing Charge Dropped?
A court will sometimes drop a criminal trespass charge, and the reasons will vary. For instance, the property owner of the premises or building where the misdemeanor crime took place might submit a notice or a brief description to the court that their trespassing harm has been satisfied or that the owner did provide consent to the person trespassing. In this case, the court can drop the criminal charges altogether.
However, this scenario is rare for a felony case. This is because the state of Florida, rather than a private citizen, brings a criminal tresspasing sentence against a potential offender.
A court might also drop a criminal trespass case if it lacks sufficient incriminating evidence. For example, if the arresting officer did not actually witness the crime, they have no grounds for a solid case and may be forced to drop it.
What Are Common Defenses of Trespassing?
A knowledgeable and experienced criminal defense lawyer will evaluate your scenario and prepare a well-rounded defense for your trespassing cases.
Some common defenses to familiarize yourself with when learning how to beat trespassing criminal charges include:
Lack of Presence
This defense is one of the most basic and not necessarily secure; however, a defendant can consider it when understanding how to beat trespassing charges. Security cameras might have captured an individual who looked like you on the property at the time of the crime, but if you know you were not present, an experienced attorney can help you prove this fact. They will develop an alibi to confirm that you are innocent.
Lack of Notice or Improper Notice
If an individual was unaware that they were not allowed on a property, they might have sufficient grounds to dismiss a charge.
“No trespassing” signs must be visible and meet certain requirements. These requirements vary depending on the nature of trespassing signs, but some of the requirements include:
- Signs must be clearly visible from beyond the boundary of the property
- Signs may be placed no further than 500 feet apart
- Sign lettering must be no less than two inches in height for visibility
- Signs must be placed at all typical entrances to the property
If a property owner fails to have an adequate trespass warning (or any trespassing signs altogether), a court can assume that an offender was unaware that their presence was not welcome and possibly drop the trespassing sentence. Although, you would still need an attorney to defend you in court.
No Notice to Depart
This defense can be one of the most effective when approaching a trespassing property charge.
An individual may assume it is okay to remain on private property if the owner allowed them onto it and did not notify them to depart. A property owner needs to give a once-welcomed visitor a warning that they need to leave. If they do not, there are likely no grounds for a legitimate trespassing charge.
Lack of Intent
In some cases, prosecutors can lean on an individual’s stealthy entry as a means to prove that said individual entered the property with negative intent. If the entrance can be seen as more public or casual, especially without the presence of a locked door, find criminal defense lawyers who will argue a lack of malicious intent.
Public or Private Necessity
Did you enter a property to protect public safety, yourself, or a family member from death or serious bodily injury? Whether you entered the property to seek safety or refused to leave to maintain safety, you might have a solid defense.
Call Mike G Law to Take on Your Trespassing Charge
Are you facing a criminal trespassing charge? Do not navigate your case alone and find an experienced law firm that will defend your rights. Contact Mike G Law for legal assistance today; with 25 years of experience as a prosecutor, he is well-equipped to handle the fine details of your case. Schedule a free consultation, and you can discuss the specifics of your case. From there, Mike G will establish realistic expectations and help achieve the best possible outcome for your situation.
Have you ever heard the rumor about a burglar getting injured while breaking into someone’s home or business, and then suing for their injuries? How likely is this situation? Could it ever happen? Would they ever win?
The short answer is, no. They could try, but they wouldn’t get far.
In most circumstances, property owners are required to protect visitors on their properties, whether those are guests at their homes or customers at their businesses. This means actively identifying any potential hazards and either removing the hazards or sufficiently warning visitors about them if they can’t be removed.
This legal duty to protect visitors from hazards doesn’t apply to trespassers. However, you may still have a responsibility to warn potential trespassers of hazards if you know there is a high probability your home or business will be broken into. Think of a “Beware of Dog” sign as an example of this.
Are There Exceptions?
There are two big exceptions to this rule where you may still be held liable for a trespasser’s injuries.
Trespassers can’t sue you for injuries they incur from accidents, such as slipping and falling on your property. However, if you injure the trespasser intentionally, such as by setting out booby traps like in Home Alone, then you won’t be protected by the law.
For example, have you ever seen a sign saying, “Private Property: Trespassers Will Be Shot”? Posting this sign is not a legal defense for shooting someone. Even Louisiana’s Stand Your Ground laws say you have to believe your life is in danger before acting in a violent manner. Someone simply entering your property isn’t enough.
Most states, including Louisiana, have something called Attractive Nuisance laws. These laws say that children are not capable of recognizing danger and can be expected to trespass to get to something that is attractive to them, such as swimming pools and trampolines.
Other examples of property that may qualify as Attractive Nuisances are playgrounds, treehouses, dangerous animals, and construction sites. If it looks like it could be a fun place to play, consider it an attractive nuisance.
This means that property owners have a legal duty to take extra precautions to keep children out and safe from the danger. Installing a fence with a locked gate that can’t be easily opened or climbed by children is a good example of how to protect yourself from liability in this type of trespassing case.
What’s Needed for a Premises Liability Compensation Claim?
To successfully file a lawsuit after being hurt on someone else’s property, an injured person will need to prove the following:
- They were injured by a dangerous condition on the property.
- They were on the property legally (excluding the exceptions discussed above).
- The property owner knew about the dangerous condition, or at least should have known (for example, after a strong storm, it’s reasonable to assume there may be downed tree limbs or power lines).
- The property owner didn’t do anything to remove the danger after learning about it, or didn’t take steps quickly enough to prevent someone from being injured.
At Dudley DeBosier, Your Case Consultation Is Free
Many injury victims hesitate to get legal representation because they are afraid they can’t afford it, especially when they may already be going into debt over their injury-related expenses. At Dudley DeBosier Injury Lawyers, we never charge for initial consultations, and even after hiring our team, you pay us nothing unless we win.
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In cases of trespass, there are some defenses available to the defendant to justify the trespass. However, ignorance or mistake of law or fact is not an excuse for trespass[i].
One of the defenses is the title and possession of the property[ii]. To invoke this defense, the person must have the actual ownership of property along with the title. The person in actual possession has the right to maintain an action for trespass against all persons other than the original owner[iii]. Thus, a trespass is privileged if the defendant is a bonafide purchaser, and has an ownership claim over the property.
An action for trespass may not be entertained where the defendant has acquired a right of easement. An easement is the right to use the real property of another without possessing it. But the defendant is liable, if s/he exceeds or misuses the extent and scope of the right. In Phillips v. Jacobsen, 117 A.D.2d 785 (N.Y. App. Div. 2d Dep’t 1986), the court observed that an easement granted in general terms must be construed to include any reasonable use which is lawful and is contemplated by the court.
The statute of limitations is a defense that is ordinarily asserted by the defendant to defeat an action brought against him/her after the appropriate time has elapsed. The defendant has to prove the entitlement to limitations.
The doctrine of estoppel is an important defense to the action of trespass. Estoppel arises when a person who had a duty to speak or act, intentionally or negligently made another through his/her action or silence to believe in the existence of a fact that does not exist, and another acted by relying on such an act or omission[iv]. The doctrine of estoppel is not applicable if the defendant has consented to it.
Apart from the defenses above mentioned, there are some exceptions. Infancy is not considered as a defense for the liability of trespass. The plaintiff’s conduct and contributory negligence can be taken into consideration to determine if a trespasser was entitled to enter a land to claim chattel. However, it is not a ground for defense.
An action will not amount to trespass if it is privileged. People who commit trespass may not be liable if they have a legal defense for their actions. A trespass may occur only when the holder of the privilege acts unreasonably or unnecessarily. Following are some of the privileges enjoyed by a trespasser:
- Necessity is a privilege against trespass. A defendant is excused from liability for trespass to land if the action is strictly necessary to prevent public disaster. The action is not liable if it is for the benefit of the defendant or a third person. But if they cause any damage while on the property, they could be held liable for any losses. For example, A, an aviator, while carefully and skillfully operating his/her airplane makes a forced landing on B’s field in the reasonable belief that it is necessary to do so for the protection of himself/herself and his/her plane. A is not liable for his/her mere entry, but s/he is subject to liability for any harm thereby caused to B or to B’s buildings, crops or other belongings.
- An action will not amount to trespass if the defendant enters another’s property to abate any public or private nuisance. Any public nuisance which causes harm can be abated and it will not amount to trespass. The act of the defendant must be reasonable for the purpose of abating a private nuisance. A public officer who is authorized to abate public nuisance is privileged to enter any person’s land for the same purpose at a reasonable time and manner[v].
- Consent is another common privilege in trespass. A defendant’s action is privileged if the entry to the land is with the consent or license of the person who has a rightful and legal possession of land. Consent can be implied from custom, usage or conduct. The action becomes trespass if it is beyond the scope of the consent or license. The acts of the defendant should not exceed or conflict with the purposes of the consent. Privilege of consent has to be established by the defendant. A person who enters a public area in a reasonable time and manner has the implied consent of the owner and his/her action does not amount to trespass. Consent will not be considered as a privilege to trespass if it is obtained by fraud, misrepresentation or under compulsion[vi].
- A law enforcement officer performing his/her duty in a reasonable manner without causing any harm is privileged to commit a trespass. A law enforcement officer is privileged to make an entry to arrest or summon up an already arrested person. Acts of persons like union agents, firefighters, physicians, conservator, power companies and telephone companies are justified under the reason of authority.
- Where a person, with the prior consent of the landowner enters the latter’s land to remove or fix any personal property, enjoys the privilege of trespass. One is privileged to enter other’s land for the purpose of removing a chattel at a reasonable time and manner without causing any damage. A person is privileged to enter other person’s land to demand the return of his/her property which is placed or left on the other person’s land. Moreover, a person can enter another person’s land to return a thing. A landowner is privileged to remove another’s personal property which is placed on the land illegally. S/he can exercise this privilege once defendant fails to comply with the landowner’s notice to remove the same[vii]. Landowner shall use due care to remove things that are wrongfully on his/her land. S/he is privileged only when the action is within the control and extent over the trespassing item as is necessary to remove it. Finally, the harm caused while exercising the privilege should be reasonable and necessary.
Property owners have a duty of care to maintain the safety of the premises for those who come onto the property. Can a burglar sue for personal injury in Bakersfield? The short answer is yes, it is possible to sue for almost anything, though many claims will be dismissed as frivolous and may cost those attempting to litigate the issue for both their own court costs and the costs of those they intended to sue. However, there are some circumstances under which even burglars may be able to successfully sue for personal injury on your property.
A Duty of Care
The duty of care property owners have extends not only to store owners or other businesses but to homeowners as well. Homeowners must take reasonable measures to ensure the safety of those who come on their property. This includes ensuring sidewalks and driveways are free of ice during the winter and making sure trip hazards are addressed as needed.
This duty of care extends to those invited onto your property for a specific purpose. This can include a plumber who comes into your home to fix a leak, landscapers taking care of your yard, and contractors performing work in or around your home.
Licensees are people who have the consent of the homeowner to enter the home for their own purposes. This includes guests you may invite to your home for dinner, neighbors invited to a backyard cookout, and friends your children invite home after school. The homeowner has a duty to exercise reasonable care to ensure the licensee is protected from known dangers.
Trespassers, however, do not have a right to be on the homeowner’s property. In most cases, the homeowner has no obligation to protect the trespasser from dangers. This would include those invited to the home or licensees in the process of committing a crime in the home. For example, should an overnight guest attempt to steal your television in the night and injure themselves by dropping the television on their foot, the homeowner would not have a duty to protect from this danger.
There are some exceptions, however, in which the homeowner may be responsible for the safety of a trespasser. A homeowner cannot set up booby traps designed to injure trespassers. Any conduct designed to willfully injure trespassers is not excused, and the burglar may sue for personal injuries that result. Home Alone may succeed as a comedy, but the bandits would likely have grounds to sue for the injuries they sustained.
Homeowners do have the right to use deadly force to defend their lives in most states. However, you may never use deadly force to protect personal property. Unless you have reason to believe your life is in danger, any injuries or fatalities you cause a trespasser intentionally may result in a successful suit against you for injuries suffered by the trespasser.
While most suits for personal injury brought by a trespasser may be frivolous, it is always a good idea to consult a Bakersfield premises liability lawyer, should you ever find yourself in the position of being sued by a trespasser.
If someone sustained injuries in a car accident, a fall on your property, or another mishap that they say was your fault, you need to know how to defend yourself against a claim for damages. The first thing that you must do is obtain legal advice and representation from a Bend personal injury attorney.
A personal injury claim made against you is a serious matter that you must not ignore. The other party could win by default and obtain a judgment for monetary damages against you. So, here are a few tips for defending against a claim for damages after an accident.
Notify your insurance company
The insurance policies that you purchase for your car, motorcycle, home, or boat do more than pay for damage to what they insure. These policies also contain liability coverage, which pays for claims made against you by other parties for damages incurred in accidents that you cause. Your insurance company will pay the legal fees for an attorney to defend you in any lawsuit filed by another party.
Liability insurance policies usually contain language requiring that you give notice to the insurance company of an accident or claim within the time specified in the policy. Failure to comply with this notice requirement may allow the insurance company to refuse to provide a defense or pay the claim.
Do not admit fault
Even something as innocent as saying, “I’m sorry,” after an accident may be used as evidence to prove that the accident was your fault. If you are involved in an accident, do not make statements about what happened to anyone other than the police. Statements that you make should be limited to the facts as you know them. Do not speculate or make assumptions.
Preserve the scene
Personal injury claims can arise through various circumstances and situations, including:
- Car accidents and other types of motor vehicle collisions.
- Pedestrian accidents.
- Slip-and-fall accidents.
- Defective consumer products.
- Assault and other intentional conduct.
- Workplace injuries.
- Wrongful death.
Regardless of the cause of an accident, you need to document the accident scene and preserve evidence, which your attorney will need in order to defend you from claims by other parties and to pursue your own claim for injuries that you sustained in the accident. Common methods for documenting what occurred and preserving evidence include the following:
- Use the camera on a smartphone to take photos and videos of the location of the accident, including the position of vehicles or other objects, such as a defective machine or another type of product.
- Take photos and videos of skid marks, debris, burn marks, and other physical evidence that may be moved or disturbed by weather or other factors after the accident.
- Obtain the names and contact information for all parties involved in the accident and any other people who happened to be in the area and may have seen or heard something that could be useful to defend you from or pursue a claim.
- Make note of any security or traffic cameras in the general vicinity that may have captured video of the accident.
- If police, fire, or emergency medical personnel respond to the scene of the accident, note their department or agency names so your attorney can contact them for copies of the reports that each agency must prepare about the incident.
Researchers studying how the human brain works when a person faces a traumatic event, such as a car crash, have concluded that what participants recall may not be particularly reliable. The human brain focuses on finding ways to protect you during an accident rather than on collecting and storing memories of what happened. The photos and other information that you gather immediately after an accident give your attorney and investigators working on your behalf something concrete to use in order to determine the cause of an accident and the party or parties at fault.
Rely on the knowledge and skills of your personal injury attorney
Someone making a claim against you for personal injuries does not necessarily mean an accident was your fault. Anyone can file a personal injury claim after an accident, but any reward requires evidence to prove who was at fault in causing it to occur.
When you retain the services of a Bend, Oregon, personal injury attorney, you will have someone on your side to look out for your interests, which may include pursuing a claim for damages on your behalf. Rely on your attorney to determine what rights you have following an accident and the best action to take to protect them.
As a property owner, you have a legal obligation to take reasonable steps to protect someone from being injured on your property. In the legal world, it is called the duty of care. You must make sure that a person on your property is safe and protected from the potential of injury. While the exact legal definition can vary from state to state, there are still similarities in ways that you can protect yourself from legal liabilities when a person is injured or harmed on your property.
An overall assessment of the property is a good place to start when evaluating your potential liabilities. You walk around the property with a piece of paper and mark down areas that need to be addressed. You locate gaps in fencing that need to be repaired or sidewalks that are cracked. Perhaps, you identify boards that have become rotten on the deck or power tools that are easily accessible. Once you have completed the assessment, you develop a plan on ways to reduce your liability from these problems. You start marking the items off the list until you have limited your overall exposure.
Four Types of People
When lawyers consider a personal injury lawsuit, one of the first things they consider is the classification of the person who was injured on the property. These can change slightly from state to state, but generally, there are four types of people on a property — invitee, social guest, licensee, or trespasser. Each classification has a different legal status. An invitee is someone who was invited onto the property. This might be like a customer at a store. A licensee is a person who is on the property as a guest of the owner. For example, a friend having dinner at your house could be considered a licensee. A social guest is a welcome visitor to the property, but a social guest can be classified as either a licensee or an invitee. A trespasser is someone on the property without permission. Negligence on the part of a property owner can be easier or harder to prove depending on the victim’s classification.
Safeguard Dangerous Areas
A swimming pool on your property needs to be secured. The same is true of a shed with chemicals, tools, and equipment. These areas must be secure in order to limit the chance that someone is injured. You have a legal obligation.
To reduce your risk of liability, it is a good idea to inform visitors about potential dangers on the property. You can tell guests to avoid the steps off the back porch or to be careful when getting in and out of the hot tub. That way, if someone is injured, you claim that you informed the person about the potential risks.
Children occupy a special classification in liability law, and you must take extra precautions to prevent an injury to a child. This is often referred to as attractive nuisance. For example, a hot tub might be classified as an attractive nuisance. Even if a child is trespassing on your property, you might still be liable if the child is harmed by the hot tub. The same can be true for a tree fort or swing. These are objects that could be known to attract the attention of children, and the children’s parents would have to prove in court that the child did not understand the risks. If you have reason to believe that children might come onto your property, the law places a special responsibility on you to prevent harm.
Condition of the Property
Hazards on your property can cause a person to suffer serious injuries if he or she trips, slips, or falls, and in many states, the condition of the property plays a role in the owner’s liability. Property owners must exercise a reasonable amount of care under a uniform standard. There are a variety of factors that determine if the property owner was acting responsibly when caring for a property, such as the circumstances under which the injured person was on the property and the way in which the property was being used. As well, the court will look at whether the property owner informed the visitor about potential safety hazards.
Calculating legal liability when someone is injured on your property is complicated. In many states, the liability is divided between the property owner and the person who was injured. It’s called “comparative fault,” and damages are based on the amount of fault attributed to the injured person. Your lawyer might claim that a reasonable person would not have walked on the cracked sidewalk or would have noticed that the railing on the deck was broken. In that case, a jury might find that the property owner was only 60% at fault and damages would be calculated damages accordingly.
Created byВ FindLaw’s team of legal writers and editors | Last updated March 26, 2019
Defending yourself against a criminal charge is no easy matter. You must understand the elements of the crime that you have been charged with and see what defenses you may have against the various elements. You do not need to defend against all of the elements, as it only takes a reasonable doubt by the jury for one of them. Every case is different, but here are a few of the most common defenses to a criminal charge.
In order to convict you of a criminal charge, the prosecutor must prove your guilt beyond a reasonable doubt. This is a pretty lofty standard, and during any trial the defendant may present a defense in order to raise such a reasonable doubt. Most defenses break down into one of two categories:
- I didn’t do it; or
- I did it, but I shouldn’t be held responsible.
I Didn’t Do It
The most basic defense to any criminal charge is to simply prove that you didn’t do it. When you are defending yourself against a criminal charge, this is probably the easiest defense, because the burden is on the prosecutor to prove each of the elements to the crime. The defendant can just sit back and let the prosecutor do all of the work, but if the defendant has something that proves that they could not have committed the crime, now is the time to speak up.
1. Innocent Until Proven Guilty
One of the hallmarks of the American legal system is the presumption that you are innocent until proven guilty. This isn’t just an ideal, it’s an actual legal presumption, which means the judge and jury must assume you’re innocent until they are shown otherwise. This is why a defendant can “plead the fifth,” remain silent, and not offer a shred of evidence to support his or her claim of innocence and still prevail. It is the prosecutor’s job to prove a defendant is guilty, not a defendant’s job to prove that he or she is innocent. So what does a prosecutor have to show?
2. Beyond a Reasonable Doubt
The prosecutor must demonstrate to the judge or jury that there is no reasonable doubt of your guilt. If any reasonable doubt can be shown, any at all, then the prosecutor has failed and you should be found innocent. Because this standard is so high, most defendants concentrate on raising some reasonable doubt to the prosecutor’s allegations.
3. I Have an Alibi
One of the primary ways defendants prove that they didn’t do it is to demonstrate that they couldn’t have done it. An alibi defense is evidence that you were somewhere else, often with someone else, and thus couldn’t have been the perpetrator. By demonstrating to a judge or jury that it is likely that you weren’t present at the crime scene, you are creating a reasonable doubt of your guilt.
I Did It, but Shouldn’t Be Held Responsible
You may have actually committed the act for which you are being charged, but you have some mitigating reason or circumstances that excuse your actions. When defending yourself against a criminal charge in this situation, the burden will be on you to prove why your actions should be excused. You will not be able to sit and wait for the prosecutor to prove their case, you will have to provide evidence of your defense. Here are a few examples of this of defenses for which a criminal act may be excused:
This is a common defense when someone is charged with causing some form of physical violence (assault, battery, etc). The defendant flips the story, and demonstrates that rather than being the aggressor, he or she was actually the victim and was acting to protect themselves from harm.
Self-defense is an ancient defense that exists in most legal systems, and is predicated on the belief that people have a right to defend themselves from physical injury. Proving such a defense can be tricky since a defendant will generally have to demonstrate that self-defense was necessary, the belief of physical harm was reasonable, and that the response was reasonable. For example, responding to an assailant’s threat to punch you by shooting them is almost certainly an unreasonable response.
2. Insanity Defense
Although it makes for fascinating TV dramas, in real life defendants rarely plead insanity as a defense. Judges and jurors are very skeptical of these claims, and because of the abstract nature of this defense, it can be very difficult to actually prove.
The theory behind an insanity defense is the notion that in almost every criminal law, there is a “mental” or “intent” element. Often, the required mental state is that you must have intended to perform the criminal act. If a defendant is precluded from an understanding of what they’re doing because of mental illness, then they can’t possess the mental state that the criminal charge requires. From a policy standpoint, we also tend to think that it would be more appropriate to send someone who is truly insane to psychiatric care, not to prison. Thus, even if a defendant is successful in an insanity defense, they will be sent to a psychiatric institution, not set free.
So how do courts define “insane”? The most popular definition is the M’Naghten test which defines insanity as “the inability to distinguish right from wrong”. To successfully win an insanity defense, a defendant will rely on testimony from a psychiatrist, and will undergo extensive psychiatric testing which can be painful and humiliating.
3. Under the Influence Defense
Related to the insanity defense, some defendants defend themselves by claiming that they were under the influence of drugs, and could not have had the mental state necessary to commit the crime. In other words, they were too high to really know what they were doing. Only a few states allow this defense, and even then, it is only a partial defense. At best, it will lower the crime you are convicted of to a lesser crime.
4. Entrapment Defense
An entrapment defense is appropriate when an official induces you to commit a crime. Common examples of this are prostitution stings or drug sales. The theory is that the government shouldn’t be allowed to push you into committing a crime and then convicting you for it.
This defense won’t be successful if the judge or jury believes you were predisposed to committing the crime, however. So even if an undercover officer offered to sell you illegal drugs, if you have a history of drug use, then an entrapment defense isn’t likely to be successful.
Get Legal Help Defending Yourself Against a Criminal Charge
Defending yourself against a criminal charge has many facets. No one individual can understand the full ramifications of every charge and every defense to a criminal case without a good criminal defense attorney. So if you’re being investigated or charged with a crime, you’d be wise to seek out a local criminal defense attorney as soon as possible.
A frivolous lawsuit is one in that has no legal merit and, therefore, has no chance of actually succeeding. A frivolous lawsuit is often filed with the intention of harassing, annoying, or disturbing the other party in question. In some cases, the lawsuit is filed to limit the collection and/or foreclosure proceedings on an outstanding debt as a possible strategy to settle the case for less.
Litigious people will threaten to sue for petty reasons, such as being unsatisfied with a product or because they’re holding a personal grudge against another party. These types of cases can have taken up valuable court time and resources and can have a negative impact on the lives of the individuals being sued.
Unfortunately, threats of these types of lawsuits are becoming more common in today’s society, and there are many people who a have a “lawsuit history” when it comes to frivolous litigation.
Business owners and wealthy individuals are often the targets of frivolous lawsuits because they have “deep pockets” and knowing this, the plaintiffs and their lawyers are counting on a settlement rather than drawn out litigation.
Avoiding Them in the First Place
While having money may certainly improve the quality of your life, it can also have its share of problems. Your odds of being the target of a frivolous lawsuit increase, and there are people who will use any and every opportunity to get a “piece of your pie” by filing a frivolous lawsuit against you.
According to the 2014 ACE Private Risk Services Survey on Personal Liability Perceptions and Behavior Among Wealthy Households, more than two-thirds of the high net worth community believe that the public’s perception of the wealthy makes them at risk for lawsuits. But, when asked what their greatest concern is with respect to being sued, the respondents seemed to be less concerned about losing a significant amount of their assets vs the stress and time involved in mounting a legal defense.
When it comes to avoiding frivolous lawsuits, comprehensive estate planning can protect your assets and leave you less vulnerable to scams and fraud. A comprehensive estate plan involves conventional estate planning structures to maximize the amount of assets that you can pass on after your death. But it also includes effective asset protection structures to protect your wealth from potentially devastating lawsuits.
Asset protection strategies that allow you to control your wealth may include:
- Limited partnerships
- Limited liability companies
- Foreign asset protection trusts
- A Private Retirement Plan (for California residents)
Protecting Your Interests
Whether you’re a business owner or a wealthy individual, without proper asset protection strategies as part of your comprehensive estate plan, you’re increasing the risk of losing everything to frivolous lawsuits.
Asset protection is all about planning in advance for that unforeseen, catastrophic lawsuit. At the Jeffrey M. Verdon Law Group, our goal is to protect your family, your legacy, and your assets from a frivolous legal attack. Take our online risk exposure test to determine whether asset protection and privacy is beneficial for you.
By FindLaw Staff | Reviewed by Chris Meyers, Esq. | Last updated November 29, 2021
Trespassing is a legal term that can refer to a wide variety of offenses against a person or against property. Trespassing as itВ relates to real estate lawВ means entering onto land without the consent of the landowner. There are bothВ criminalВ and civil trespass laws. Criminal trespass law is enforced by police, sheriffs, or park rangers. Civil trespass requires that the landowner initiate a private enforcement action in court to collect any damages for which the trespasser may be responsible (regardless of whether a crime has been committed).
Intent and Knowledge Requirements
Traditionally, for criminal or civil trespass, there is someВ level of intentВ required. The trespasser must not simply accidentally cross another’s land but must knowingly go onto the property without permission. Knowledge may be inferred when the owner tells the trespasser not to go on the land, when the land is fenced, or when a “no trespassing” sign is posted.
A trespasser would probably not be prosecuted if the land was open, the trespasser’s conduct did not substantially interfere with the owner’s use of the property, and the trespasser left immediately on request.
The landowner may indicate verbally or in writing the grant of permission to enter onto the land. Make sure you have a start date and end date. In most states, a landowner may give permission to enter their land for a limited time or purpose. However, the license is revocable at any time by the landowner.
The existence of consent may be implied from the landowner’s conduct, from custom, or from the circumstances. Consent may be implied if the landowner was unavailable to give consent, and immediate action is necessary to save a life or prevent a serious injury.
Homeowner Liability: What if a Trespasser Gets Hurt?
As bizarre as this may sound, there are some limited protections for trespassers if theyВ get injuredВ while in the act, so to speak. Homeowners can sometimesВ beВ liable to trespassersВ if they willfully injured the person or knew or should have known about the presence of frequent trespassers and kept an unsafe condition.
What does all this mean? Well, let’s say you, as a homeowner, set up a booby trap for a trespasser with a trip wire. If a trespasser trips on the hidden wire and suffers injury, the homeowner may be liable for injuries.
What are some things you can legally do? If you are concerned about trespassers coming onto your land, start with a “Private Property” or “No Trespassing” sign in a visible place. Not only does it put the trespassers on notice but it also conveys your intent to keep your land to yourself and not as a make-shift easement for others.
You may also consider installing video cameras or trail cameras in the traveled area. The presence of the camera itself can be a deterrent to some. Be sure you are up-to-date on your state’s laws regarding videotaping or filming before installing a camera. You can do this by speaking with a local attorney.
Trespassing Basics: Additional Resources
- Select State Laws on Hunting and Trespassing
- Adverse Possession: Continuous Trespassers’ Rights
- Land Use and Zoning Basics
Have Questions About Trespassing? Talk to an Attorney
If you think someone is entering your property unlawfully, it will help to get an understanding of trespassing law and the various exceptions. Get in touch with a skilledВ real estate attorneyВ near you to learn how the law applies to your particular situation.
While there is no pan-India legislation that specifically targets land grabbing, the same is considered illegal and criminal under various provisions of the Indian Penal Code.
Land grabbing refers to any activity by which someone occupies or attempts to occupy any land over which they do not have any lawful entitlement. They may or may not use force, threats or intimidation with a view to illegally possess the land or create illegal tenancies or sell or construct unauthorized structures thereon.
This may be done by individuals, groups such as “land mafias” or companies and may be carried out by means of fake and fraudulent documentation, corruption or even muscle power. In certain cases, it is possible that someone who had entered the land with the consent of the owner – such as a tenant – may refuse to leave after expiration of the tenancy and attempts to keep wrongful possession of the land.
While there is no pan-India legislation that specifically targets land grabbing, the same is considered illegal and criminal under various provisions of the Indian Penal Code. While the exact applicable provisions will vary case to case, the following sections of the Indian Penal Code (IPC) are most commonly used in such situations.
#Section 441 (Criminal Trespass): When someone unlawfully enters a property, or lawfully enters a property but unlawfully remains there (such as a tenant after expiration of tenancy) with the intent to commit an offence, or to intimidate, insult or annoy the person in possession of such property, it amounts to criminal trespass.
#Section 425 (Mischief): When someone intentionally or knowingly causes destruction of a property or any change in a property that diminishes its value or utility, they are said to commit “mischief”.
#Section 420 (Cheating): This provision is applied when someone cheats and deceives you into delivering any property to someone else.
#Section 442 (House Trespass): This is a form of “criminal trespass” wherein the trespasser unlawfully enters a human dwelling, or any building used as a place of worship or as place for the custody of property.
#Section 503 (Criminal Intimidation): Any threat of injury to person, reputation or property with the intent to cause them to do something which they are not legally bound to do is a form of “criminal intimidation”.
Certain states like Karnataka and Andhra Pradesh have passed Acts which focus solely on land grabbing, and in which land grabbers are liable for imprisonment as well as fine. The state of Odisha has also formulated similar rules. Recently, the state of Gujarat passed an act with stringent punishment for land grabbers, wherein the imprisonment may very between 10 to 14 years and the fine will depend upon the Jantri value of the property. Gujarat has even appointed special courts to handle such matters. This Act also puts the burden of proof on the grabber once the basic rights of the landowner have been established at least on the face of it.
Actions to be taken if your land has been grabbed
Gather all the requisite documents showing your lawful claim over the property. However, documents such as sale agreement, power of attorney and wills alone may not suffice, and therefore, more documents must be collected to show ownership of residential property. For example, title deeds, conveyance deeds, duly paid property tax returns, khata, etc. In the case of agricultural land, such documents may include the record of rights (RoR), tenancy and cultivation, relevant extract from mutation register from tahasil office, akarbandh, etc. These documents establish your right over the land in question.
Approach the Police: In states where specific land grabbing legislation is not available, you may file a police complaint on the basis of the above-mentioned IPC sections. In states with Land Grabbing Prohibition legislations, the complaint will be filed as per the provisions of that particular legislation.
Approach the Court: You may file a civil suit in a civil court under Section 5 of the Specific Relief Act, 1963 (SRA) in accordance with the Code of Civil Procedure, 1908 (CPC) for recovery of a specific immovable property/ land. In case you have been wrongfully dispossessed of a property then you can file a civil suit under Section 6 of SRA within six months from the date of dispossession. In addition to recovery, you can also pray for temporary and permanent injunction against the land grabber/trespasser. Permanent injunctions are granted at the final disposal of the suit while temporary injunctions operate during the pendency of the suit. If you secure the judgement in your favour, it will be followed by filing of an execution petition under Order XXI Rule 35 of CPC to get the order/decree executed. Your chances of winning such a suit are higher when you have the appropriate documentation that proves your rights on your land. You may also seek damages as compensation for all the losses you may have incurred due to the land grab.It is advisable to approach a lawyer to decide the right course of action from the available options to determine what approach would be best in your scenario.
If your land in the city of Hyderabad is grabbed, you may call 1800-599-0099 which is a number set up by the local Municipal Corporation.
The state of Uttar Pradesh has established an Anti-Land Mafia Task Force. One may register their complaint on the website: http://jansunwai.up.nic.in/ABMP.html.
Precautionary Measures to Prevent Land Grabbing
It is generally advisable to carry out the following preventive measures in order to avoid the risk of having your land grabbed.
* Keep your property documents in order
* Pay utility charges (water, electricity, etc.) and government taxes on time; keep a record of the receipts
* Register your property in accordance with state laws
* If you don’t live at your property, make sure to regularly conduct inspections; put up appropriate fences and sign- boards to ward off trespassers.
(The writer is an advocate, specializing in the domain of intellectual property rights and presently working as a Managing Associate with LexOrbis, an IP boutique firm based in New Delhi, Mumbai and Bengaluru.)
Personal injury lawsuits are often valid and difficult to defend when the plaintiff legal counsel can establish the case with supporting documentation and identify the appropriate respondents who may have been negligent with respect to a reasonable duty of care owed to the injured plaintiff. This component of a personal injury lawsuit is often accomplished relatively easy following automobile accidents where the police have performed an investigation and listed all parties involved. Lawsuits also usually are filed after an extensive negotiation concerning the specific injuries that become items of damage recovery in the formal filing. Those negotiations consist of the legal positions of each party regarding the level of negligence and degree of responsibility for each respondent. In slip and fall personal injury cases, the dynamic is somewhat different, but automobile accidents regularly involve several parties who contributed to the accident in some manner who are also attempting to recover damages. This commonly results in very complicated cases where defendants and their insurance companies are attempting to lessen their level of fault and deflect responsibility to other involved parties. This is also why it is absolutely necessary to have an experienced personal injury lawyer defending your legal case.
Assertions of the Plaintiff are Invalid or Overstated
Invalid assertions can be stricken from the record in some instances when the plaintiff legal counsel cannot prove the claims. Some claims are filed with overstated pain-and-suffering claims as well as overly-calculated loss of future wages. The diagnosis and prognosis of medical treatment professionals can be evaluated and defended as well, many times by a second opinion from an impartial medical professional who is legally qualified to present a competing analysis. While this may not always result in a case dismissal, certain items can be eliminated and injury claims regarding the degree of injury can require closer evaluation, which normally results in a reduced amount of financial damages available.
Respondent Did Not Owe a Duty of Care to the Plaintiff
All lawsuits will include the actual legal claims of the plaintiff, and many times the original filing fails to meet the standard of establishing a reasonable duty of care by connecting the respondent to the accident that caused the injury. This is a more common defense in premise liability personal injury claims, as automobile accidents are often better supported by documentation such as police reports and ambulance records. Premises liability cases filed against a business operator may be misdirected when a property owner is the one who is actually liable. This defense depends the specifics of the lawsuit claims.
Plaintiff Was Responsible for Their Own Injuries
This defense falls into the category of comparative negligence, which each state uses in some manner. Some states use pure comparative negligence that allows any injured party in an accident injury to receive some amount of financial compensation unless they are totally at fault for the injury, such as an intentional act or they were convicted of drunk driving. Most states use modified comparative negligence law that states plaintiffs are barred from any financial recovery if their comparative negligence percentage is greater than the respondent. The bar level is usually either 50% or 51% to deny a claim. In pure contributory negligence states, any contribution to the causation of the injury will be an effective defensive strategy. In premises liability cases, the focus is on individual reasonable assumption of risk based on the actions of the plaintiff. An example of this defense would be trespassers who are injured and normally lose their claims based on no authority to occupy the property. This means that technicalities can matter greatly, depending on the state of occurrence, and the particulars of the claim are all potential reasons for a case dismissal, or at least a reduced financial liability.
Lawsuit Was Filed Late
Many personal injury claims are the result of an injury that did not appear as serious when it first occurred, but later manifested to a serious situation that required ongoing medical treatment and created a pain-and-suffering compensation situation. All states have a statute of limitations law that is assessed for each particular personal injury lawsuit. This can be an effective defense in cases that are filed at the end of the limitations time period, even when the injury was recognized at a significantly earlier time. Why the plaintiff waited until the end of the limitations time period can be an issue as well because it could indicate that the injury is not as serious as claimed. This could result in a dismissal based on being a frivolous claim.
Insurance companies are in business to turn a profit, just as any other business, and they are always willing to investigate a claim fully. It is important to understand that your insurance company may be your best friend when defending against a personal injury lawsuit. In most instances, they actually provide the legal counsel for their clients because it is in the best interest of both the client and the company to look at all avenues of defense. Insurance claims adjusters and claim defense attorneys deal with personal injury claims regularly and understand all components of a negotiation, including taking a case to a full jury trial in hopes of an acquittal by a jury that thinks the claims of the plaintiff are excessive and often erroneous. Even valid personal injury claims can result in a much better final outcome when each and every detail regarding material case facts can be addressed in court. Hiring a qualified Las Vegas or Summerlin personal injury lawyer is the best way to ensure the best possible result when defending against a personal injury case.
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Finding yourself or your business in a situation in which you are wondering exactly how to stop a frivolous lawsuit is unfortunately becoming a common occurrence. This is especially true in states like California and in labor disputes, where one side is given a significant advantage and protections. This opens up the potential for more frivolous litigation. What…
Finding yourself or your business in a situation in which you are wondering exactly how to stop a frivolous lawsuit is unfortunately becoming a common occurrence. This is especially true in states like California and in labor disputes, where one side is given a significant advantage and protections. This opens up the potential for more frivolous litigation.
What is a Frivolous Lawsuit?
The official frivolous lawsuit meaning, according to the US Legal system is a legal claim that is filed by any entity or individual who is well aware that the lawsuit has no facts or basis to support it.
Frivolous lawsuits may also be filed to delay other legal proceedings. For example, certain real estate proceedings cannot commence if the real property at issue is involved in a lawsuit. A frivolous suit may be filed for strategic reasons as opposed to meritorious reasons.
If you’re at the receiving end of a similar situation, here’s what you need to know
Stay Calm and Don’t Panic
Before you start to panic and lose sleep over the situation, understand that you’re not alone. Even as you plan on how to stop a frivolous lawsuit, consider these examples.
- An obese customer suing a restaurant because of the small size of the booths.
- A client or shopper suing the store to claim compensation for a false or exaggerated injury.
- A thief breaking into a house suing the owners because he tripped over a wire and hurt himself.
- A convicted murderer suing his hostages because they escaped when he fell asleep.
- A woman trying to get back at her ex-boyfriend for dumping her by accusing him falsely of violent behavior.
- A fellow commuter threatening assault and battery because you mistakenly brushed against her in the bus.
Not only are such lawsuits very common but know that most litigious people simply threaten to take you to court without having the intention to do it. The behavior they display is vindictive and spiteful and typically intended to get back at you by causing emotional and mental anguish along with monetary loss. Whether you are facing a silly lawsuit, a clearly crazy lawsuit or a simply outrageous lawsuit without any basis in reality, it’s important to stay calm but focused.
Count on the Discretion of the Court
Attorneys, judges, and the judicial system are faced with frivolous lawsuits frequently and there are measures to deal with them quickly. In fact, if your attorney were to plead a motion to dismiss, the lawsuit could get thrown out even without being heard. Also, be aware that attorneys who represent litigious people can be sanctioned for filing such frivolous legal actions in court. While there are certainly examples of frivolous lawsuits that actually won, most of them do not end that way.
Here’s another factor: in some states, people who bring frivolous litigation on a frequent basis, are punished and added to the list of “vexatious litigators.” In many cases, filing a frivolous claim will lead to a civil fine and may also lead to a contempt order if you have an attorney who is knowledgeable in this area of law and knows what types of motions to file before the court. Attorneys who knowingly file frivolous lawsuits may also be fined, sanctioned or face suspension of their license to practice law. Abusing the legal system happens frequently but it is not treated lightly. Filing a lawsuit comes with great responsibility. Discuss all these factors with your attorney when discussing how to stop a frivolous action.
Collect All Documents and Evidence
Collect all the communication you had with the person or entity suing you such as contracts, letters, affidavits, signed statements, financial records, and hard copies of emails. Create a written account of your interactions including dates, times, and any other details you can remember. When planning your defense on how to stop a frivolous lawsuit, talk to all the potential witnesses who can testify on your behalf. If you can find professional experts who are not directly involved in the lawsuit, their testimonies can help.
Refrain from New Communication
Make it a point not to contact the suing entity directly or respond if she tries to get in touch with you. Whatever interactions you have must be through your attorney. Do not agree to any claims or give something without checking with your attorney. Work on the assumption that the litigator will try to intimidate you by lying and adding untrue facts to the situation. Also, know that bringing a lawsuit and proving the claim are two different things in court.
How to Stop a Frivolous Lawsuit? Get Expert Legal Representation!
If you’re wondering about how to stop most frivolous lawsuits, you must contact an experienced attorney who can advise you on the best course of action to take. Very often, a wise option is to settle out of court by apologizing or offering a small compensation to resolve the issue even if you were not at fault. But, if you feel that the matter can’t be settled, go ahead and work with your attorney. Remember, depending upon your case, the law may direct the prevailing party in a lawsuit to pay attorney’s fees if it is proved that he sued in bad faith. When someone is threatening you with an illegal lawsuit, remember that with the right legal representation, your rights will be protected.
Commonly Asked Questions About Frivolous Lawsuits:
- Can you counter sue for a frivolous lawsuit?
- Can you sue someone for wrongfully suing you?
- What to do if someone is suing you?
- What is a litigious person?
How to Deal With Litigious People and Frivolous Lawsuits
Frivolous Lawsuit Law & Legal Definition
The Countersuit: How to Fire Back at Frivolous Lawsuits
New Jersey Self defense exists when the defendant reasonably believes that such force is immediately necessary to protect himself against the use of unlawful force by another person on the present occasion.
The defendantвЂ™s honest belief in the necessity of using force is a requirement for the justification of self defense.
New Jersey self defense requires the defendant to have a reasonable belief about three subjects:
The force defendant is using must be immediately necessary вЂ“ in other words the defendant must believe that the unlawful force will be used against him at the time that he acts;
the force used against the defendant must be unlawful вЂ“ this defense is not available to the aggressor;
the amount of force which the defendant uses must be necessary вЂ“ this defense is unavailable if the actor is unreasonable in his belief about the amount of force necessary and if acting on this unreasonable belief the actor uses an excessive amount of force.
The defense is unavailable if the defendantвЂ™s belief about any of these three subjects is unreasonable.
In determining whether the belief is unreasonable the trier of fact – Judge or Jury – must consider the particular facts of the case.
These would include the age, size and physical condition of the parties.
Other facts to be considered are threats made or prior altercations between the parties.
The trier of the fact can also consider the reputation for violence of the other party as it was known to the defendant.
The reasonableness of a defendant’s belief is to be determined by the jury and not the defendant in light of the circumstance existing at the time of the offense.
If the defendants belief about the need to use force to protect himself is unreasonable then the defense of self defense is unavailable.
A victim’s character is admissible to prove that the victim was the aggressor, so a victim’s conviction of a violent crime may be admitted to establish that he or she was the aggressor.
Deadly force is justifiable only if the actor believes it to be necessary to protect himself against death or serious bodily injury.
There is a duty to retreat first.
New Jersey Self defense will be allowed as an excuse to a charge of unlawful possession of a firearm only in those circumstances where an individual arms himself to meet an вЂњimmediateвЂќ danger.
Use of Force For Protection Other Persons
New Jersey self defense allows for the use of force against another to protect a third person when the actor would have been justified in using force to protect himself against injury.
In order for this defense to be available the actor must reasonably believe that under the circumstances the person he seeks to protect would be justified in using such protective force, and that this intervention is necessary for the protection of that person.
The defense is available if the actor is mistaken about his belief about the facts or the need to aid the victim, but the mistake is reasonable under the circumstances as they appear to the actor.
There is no duty to retreat as in the case of use of deadly force in self defense.
The burden of disproving the claim of defense of another is on the state.
Use of Force in Defense of Premises or Personal Property
New Jersey self defense gives a person the right to use force against another to protect real property вЂ“ home – but first the defendant must be in possession or control of the premises or licensed or privileged to be there.
In addition, the defendant must reasonably believe that the force is necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass вЂ“ unlicensed or unprivileged entry вЂ“ or against a person committing a more serious offense.
Prior to using force the defendant must request the intruder to stop interfering with the property unless the request is useless or dangerous to himself or another to make the request or if substantial harm would be done to the property before the request can effectively be made.
A trespasser cannot be expelled by the use of force if the defendant knows that the exclusion will expose him to a substantial danger of serious bodily harm.
Deadly force may be used to repel a person attempting or actually committing arson, burglary, robbery, or other criminal theft or property destruction.
However, either of two sets of circumstances must be present before deadly force can be used for the protection of premises.
First, the occupant reasonably believes that the person against whom it is employed is using or threatening to use deadly force in the occupantвЂ™s presence.
Or second, a person reasonably believes he could terminate or prevent the commission of a crime but if he used less than deadly force he would expose himself or another to a substantial danger of bodily harm.
Same standards apply to protecting personal property except there is never a justification to use deadly force in defense of personal property вЂ“ no justification for shooting at thief attempting to steal oneвЂ™s automobile.
Property owners have legal rights to control what happens on their property, including who enters or stays, giving them some rights to remove trespassers. The legal definition and severity of each violation of those rights is sometimes unclear, and it depends on the situation. Trespassing, intentional trespassing and trespassing with criminal intent are all different scenarios with different legal consequences. To ensure the best outcome, understand the relevant terminology, property owners’ rights against trespassers, and how to respond when someone does trespass.
What Defines Trespassing?
Cornell Law School reports that the legal definition of trespassing describes situations in which an area has clearly defined boundaries, and a person intentionally enters or remains within those boundaries, including introducing physical items into the area without the permission of the owner(s). There are two conditions necessary to qualify as trespassing.
Defining a property boundary: “Clearly defined boundaries” include fences, walls and doors or even sidewalks or natural landmarks such as a river or treeline. Basically, if you can point out a visible line where ownership of the property changes, it is a clearly defined boundary.
Communicating lack of permit: To sufficiently communicate your denial of permit you must communicate, or have proof of a reasonable effort to communicate, that fact to anyone who might trespass. This is usually done by posting clearly visible “No Trespassing” signs at regular intervals along the property’s boundaries. Implied consent is when the landowner has no posted denial of permit, entering/crossing the property is an established custom, or immediate action is necessary to save a life or prevent a serious injury.
Different Categories of Trespassing
Legal Match reports that intentional trespassing occurs when a person is aware of both the boundary and the lack of permission to enter, but crosses it anyway. Throwing rocks or litter onto a property intentionally is also counted as trespassing, but loud noise or smoke is not, though it could be a nuisance. Another form of intentional trespassing is if a person is allowed to be on a property for a limited time and overstays that allotted time. This is a civil wrong, and usually a misdemeanor.
Unintentional trespassing occurs when a person is unaware of having crossed a boundary, or doesn’t realize that entrance is not permitted. This is not an offense in which the trespasser will be charged, so long as they promptly leave the property when asked.
Criminal trespassing is intentional trespassing with intent to commit an offense or intimidate, harm or insult anyone permitted to be on the property. Punishment can include imprisonment or fines, although the severity of punishment differs from region to region.
Removing Trespassers Legally
The best way to keep trespassers off your property is to establish clear boundaries and make an effort to create physical boundaries to prevent trespassing. Post clearly visible “no trespassing” signs or notices at entrances or at regular intervals along your boundaries. Indicate intention to litigate to the fullest extent allowable.
Despite the frustration of the situation, you are not allowed to physically remove trespassers. You must first give them notice, then call the police if they fail to leave. That notice can be in verbal or written form, so the best way to keep trespassers off your property is to post clearly visible “no trespassing” signs where any potential trespassers will see them.
If someone is trespassing on your property, you cannot legally detain the person until police arrive if he attempts to leave of his own accord. If the trespasser has caused damage or committed other offenses, be certain to document them, as well as to record an image, video or at least a description for later identification and persecution. That said, if a trespasser threatens you or others who are on your property with permission, or threatens to damage your property, you are allowed to take appropriate action. Familiarize yourself with your region’s laws to avoid facing legal action from the trespasser.
Trespassing is the legal term that refers to the act of entering onto another person’s property without express consent or permission. A criminal trespassing charge will often only apply if there is intent, i.e., knowledge that the property is private before entering. You can also be charged with trespassing on public property if it is a restricted area.
Trespassing a charge that can be associated with other criminal offenses, like harassment, stalking, or violation of a restraining order in domestic cases, or burglary in theft cases. It can also be applied to electronic trespassing or hacking/computer crime.
Trespassing laws are also applied in cases of disorderly conduct, loitering, and situations where homeless people are being harassed.
As you can see, these broadly applied statutes require legal experience to unpack and determine what is really going on in any particular criminal trespassing case.
Every state will have different laws and statutes pertaining to trespassing, but we will provide a general overview of the laws and penalties associated with those who are accused of trespassing on another’s property. You will find the best advice on how to address your specific situation by discussing it with an experienced criminal defense attorney in your state. They will be able to give you detailed, one-on-one advice about your best course of action to take care of the charges placed against you.
The reason that you trespassed is important to the legal process in this case. If you trespassed with ‘intent,’ i.e., you knew that you were entering private property without permission; the penalties will be more severe. If you just wandered onto the property without knowing that you were on someone else’s land, your case may be dropped.
For you to understand that you were trespassing on private property, the land would have to have a fence or a ‘no trespassing’ sign posted. Without proper notification, you would have to actually damage the property to be charged with trespassing. Knowledge of the nature of the property is almost always the most important indicator in this type of case.
Similarly, trespassing on public property can be charged if you walk into an area restricted for pedestrians other unauthorized use, such as walking through a tunnel or across a public bridge that has been marked for no pedestrians.
Trespassing on restricted government property or sensitive security areas
If the state or the Feds are concerned about what you were doing in a sensitive location, they may charge you with trespassing as a pretext to investigate your behavior further.
If they have any reason to suspect that your action could be a public safety threat, you can expect a lot of scrutiny by the authorities, fair or not. Threats and fear of terrorism can make even taking photos of bridges or tunnels, electrical power stations, or wandering into protected areas with a public water supply a serious issue.
In addition, if you are there to protest, the police may charge you with trespassing to get you off the property and discourage further actions by others.
If you are a hunter, you are not permitted to trespass on another’s property. However, some states will treat the situation differently if you were hunting when you trespassed on the property. Some states allow hunters to enter property that is not labeled with a fence, sign, or some other marker, and others may have a legal provision that allows hunters to trespass to save a wounded animal or hunting dog.
Trespass by Animals
If your livestock are found off of your property, you may be liable for damages that they cause. Most states have adopted laws that only require livestock owners to pay for damages made within a fenced in area.
With the advent of the Internet, many different methods for trespassing into someone’s private life online have surfaced. This type of crime may also be punishable by law since the unlawful use of software or viruses to extract information is prohibited. Electronic trespassing laws are expanding into criminal statutes nationwide.
Penalties for Trespassing
Simple trespass is the act of entering property unlawfully without the intent to harm or damage individuals or the property. The penalty for this type of trespassing is usually a summons, and this type of sanction does not appear on your court record.
However, you can be arrested for misdemeanor trespassing, usually in cases where the police believe you are either being willfully disruptive, or trying to gain access to sensitive areas.
First Degree Trespassing is the act of trespassing with intent, knowing that he or she does not have permission to enter the property. Penalties for this crime usually will not exceed one year in jail and a fine.
Second Degree Trespassing is another form of trespassing that is accidental, and the fines are significantly less. If you are charged with second-degree trespassing, you will typically be fined $1,000 or be sentenced to 6 months in jail.
Defending Yourself Against a Trespassing Charge
Regardless of whether you intentionally entered the property or you are being falsely accused of trespassing with intent, an attorney can help you understand the best actions that you can take to help reduce your sentence. Since the laws are complex, talking to a local defense attorney who knows how trespassing laws are prosecuted and applied in your state is the only way to know where you stand.
And because trespassing is a fairly trivial charge that is often not pursued, the fact that you were charged with a crime often means there is more going on in the case than simply wandering onto property where you are not allowed.
A trespassing arrest or criminal citation is much more likely to occur because:
- You were being disruptive or engaged in a political protest
- You were deliberately violation trespassing laws to be disruptive
- You trespassed onto a sensitive security area, either on purpose or accidentally
In all of these cases, there is more to the story than a very minor accidental offense. For these reasons, you need a criminal defense attorney to advocate for you, and protect your rights against an aggressive prosecution, whatever the situation.
Please call us today to arrange a free consultation with a local defense lawyer today!
Can you think of anything more infuriating than being sued by someone trespassing on your property? Maybe you’ve even heard those aggravating tales of burglars suing for personal injury after they were injured breaking into someone’s store or home. Though these lawsuits seem petty and frivolous, some trespassers do have legitimate claims. And, in these cases, the burglars and trespassers don’t always lose. There are several circumstances in which burglars and trespassers can sue you for personal injury and win.
If the idea of a burglar suing you after slipping on a puddle in your kitchen makes you angry, you’re not alone. Though, you are responsible for keeping your home safe for invitees, licensees, and guests, you are not responsible for keeping your home safe for trespassers. So if a burglar slips on a puddle, or trips over an object on the floor, you are not likely to be found responsible for their injuries.
If you notice footprints around your home or other signs of attempted break-ins, it may be tempting to set up traps to catch the trespasser. However, just because you aren’t responsible for protecting trespassers, that doesn’t mean you can rig your home like Kevin McCallister from Home Alone . Setting up snares can expose you to liabilities beyond your wildest imagination: do not set up traps in hopes of doling out justice. Otherwise, you may find yourself as the defendant in a criminal case.
You may also find yourself on the wrong side of a court case when the trespasser was a child. This typically occurs when your property contains an attractive nuisance. An attractive nuisance is defined by Cornell Law as, “a hazardous object or condition on the land that is likely to attract children who are unable to appreciate the risk posed by the object or condition.” An attractive nuisance can be slides, swing sets, a pool, and animals — even trampolines can be an attractive nuisance. If an attractive nuisance causes a child injury on your property, you may be liable for their injuries even if they were trespassing.
A lot of people mistakenly believe that they are allowed to use deadly force whenever a trespasser enters their home. However, this is not necessarily the case; Utah’s laws surrounding burglars and deadly force are nebulous at best. Though you are able to use deadly force when your life is threatened (self-defense), you are not legally permitted to use deadly force to protect your personal property. This means you cannot shoot a burglar in order to protect your computer or television.
When home invasions result in injury, it’s most likely the victims who are injured. If you were injured when someone decided to break into your home, Moxie Law Group is here for you . Facing the consequences of someone else’s criminal behavior is an incredibly frustrating and unfair experience. This is especially true when another person’s illegal activities have caused you physical and psychological damage. At Moxie Law Group, we’re dedicated to protecting the injured. If you have been injured during a home invasion, give us a call to find out how we can help you get the compensation you deserve.
Florida Squatter’s Rights
- Florida Squatter’s Rights
- How to Sue for Trespass
- Criminal Trespassing Laws in Arkansas
- Penalties for Trespassing in Texas
Trespassing is a broad legal term that can refer to a variety of wrongful or unlawful acts. Typically, it is defined as knowingly and intentionally entering the property of another person without the owner’s permission. More broadly, it can refer to a number of unlawful acts that are committed on another person’s body or that person’s property. Committing trespass can result in both criminal and _civil legal liabilit_y.
Specific laws and penalties for violating those laws vary by jurisdiction, but in general, trespassing is a misdemeanor offense. In some cases, however, trespassing can become a felony offense if the circumstances warrant, such as when the trespasser is armed with a weapon.
Making a Report to the Police
To ensure that another person is properly charged for criminal trespassing, the property owner will need to identify and describe the person to local law enforcement. Typically, this is either the sheriff’s office or the local police department for the county or municipality in which the property is located. The owner should also describe the individual’s basic physical appearance, including approximate height and weight, apparent gender, race and clothing.
Ideally, the property owner should arrange to meet the police officer or sheriff’s deputy at the physical location of the trespass. If the person trespassing has left the premises, the owner can walk the property and describe the trespass to the law enforcement official. However, it is important to remember that some trespassers may harbor violent intentions, and people making trespass reports should never put themselves in additional danger by waiting outside or attempting to confront the trespasser themselves.
Describe the circumstances, such as whether the individual was asked to leave the area or establishment and did not comply. If signage is posted warning against trespassing, this should also be called to the officer’s attention. It’s important to explicitly state to the police officer or sheriff’s deputy that you would like to press or file criminal trespass charges.
Obtaining Information About the Case
As the victim in the case, the property owner will receive a copy of a no-trespass citation or order. You are also entitled to information about the disposal of the case, such as whether the trespasser enters a plea, pays a fine, or requests a trial.
Criminal Penalties for Trespass
In most cases, trespassers will not be sentenced to any substantial imprisonment terms. Typically, penalties for misdemeanor trespass include a few days to a few months in the local jail. In some cases, where the defendant has been arrested and placed in the local detention center pending trial, the court may impose a sentence of “time served.” This means that the judge is crediting the defendant with the number of days spent in detention as part of the eventual trespass penalty.
Courts will also often impose a fine either in lieu of or in addition to any jail sentence. Fines are usually established by state criminal statutes, and they may be as little as a few hundred dollars or as steep as several thousand dollars. Judges typically are granted wide discretion in imposing criminal fines for trespass and other crimes. Defendants may also be required to pay court costs of $100 or more.
Bringing a Civil Lawsuit Against Trespassers
In addition to seeking criminal charges, a property owner may also file a civil action against an individual who trespasses on private property. Unauthorized entry onto private property interferes with the owner’s exclusive right to enjoy their property.
Civil lawsuits for trespass can compensate the property owner for any actual damage to the property as well as potential damages for the trespass itself. To prevail on this type of tort action, a plaintiff must prove the following:
- The defendant had a legal obligation not to enter the property of the plaintiff;
- The defendant knowingly and intentionally came on the plaintiff’s property despite that obligation;
- As a result, damage was done to the property or the plaintiff.
Defending Property Against Trespassers
Often, when trespasses recur frequently or damage is inflicted on the property in question, property owners are tempted to defend their property in some fashion. Doing so can, in some jurisdictions, expose the homeowner to legal liability to the trespasser for any resulting injuries.
Owners are not obligated to protect trespassers, as they are unauthorized “guests” on the property who are present on the property without permission to be there. However, in some circumstances, the owner may be liable if the trespasser is injured on the property.
Typically, an injured trespasser must prove four elements before holding a property owner liable for injuries sustained during a trespass:
- The property owner created or maintained a dangerous condition on the property;
- It was foreseeable that the condition would likely cause serious physical injury or death;
- The owner had reason to believe that people trespassing on the property would not learn of the condition in time to avoid injury; and
- The property owner did not take reasonable precautions or actions to warn others about that condition and the dangers inherent in it.
If the trespasser adequately establishes these four facts, the homeowner may be held liable for the individual’s damages, including the costs of medical care.
By John Barnes | November 15, 2018
Most people know that they have the right to defend themselves from harm. However, the law does not allow you to justify violence by claiming self-defense in any given situation. It is important to understand the basics of self-defense under Tennessee law, both to prevent criminal charges and to defend against them.
The following is a brief overview regarding how Tennessee treats self-defense. To discuss how the law may apply to a specific situation, please contact Barnes Law directly to consult with an experienced Knoxville criminal defense attorney.
How a Self-Defense Claim Works
Claiming self-defense means that you admit that you acted in violence toward another person, but you claim that you had legal justification for the violence. This is a common claim when someone is accused of assault or murder, and they allege that the harm was necessary to protect themselves from violence. There are some requirements for when you can lawfully claim self-defense:
- You were not engaging in illegal activities at the time
- You had the right to be in that location at that time
- You had a real honest belief that the threat of bodily harm was imminent and that your actions were necessary to protect you from the imminent harm
- Another reasonable person would have also feared imminent harm and believed the actions were necessary under the same circumstances
It is important to emphasize that you must prove you feared imminent harm, such as someone coming at you aggressively, swinging a punch, or driving toward you in their car as if to hit you. Self-defense would not be justified if someone threatened later violence against you. For example, if a person at a bar said they were going to fight you outside in 20 minutes, you would not be justified in using violence right then to prevent later harm.
In most cases, the other person must be the initial aggressor in the situation. If you push someone and start a fight and they push you back, you cannot lawfully continue to use violence to protect yourself from them. One exception to this requirement is if the other person substantially escalates the violence. If you push someone and then they pull out a gun, you can then protect yourself from deadly harm. Additionally, you may be able to claim self-defense if you start a fight, try to retreat from the fight, and the other person continues to act violently and pose an imminent threat of harm. If the other person is the initial aggressor, however, there is no duty to retreat before you act in self-defense in Tennessee like there is in some other states, due to the “Stand Your Ground” law.
Using Deadly Force in Self-Defense
In some cases, an act of self-defense may cause or threaten death to another person. Deadly force is only justified to protect against serious bodily harm or death. For instance, if someone swings a punch at you, the law does not allow you to shoot or stab them to protect yourself. The deadly force must be proportional to the harm feared.
Tennessee does have a law called the “Castle Doctrine,” which allows people to use deadly force under certain circumstances to protect themselves in certain locations. The Castle Doctrine is based on the idea that your home is your castle and you should be able to protect yourself in your home and similar location. The Castle Doctrine creates a legal presumption that self-defense may be justified if someone forcibly enters the following locations:
- A home that you own, lease, or in which you are an invited guest
- A business establishment that you own or in which you work as an employee or an agent of the owner to protect the premises
- A building or dwelling of any kind with a roof over it that is intended for use by people, including mobile homes and tents
- Any type of motorized vehicle designed for people to use on public roads to transport people or items
In order for the Castle Doctrine to apply, you must be lawfully in the location and you must know or reasonably believe that the other person unlawfully entered. The law does not permit deadly force in the following situations:
- The victim of the deadly force had the right to enter the home or location
- The victim of the deadly force was trying to remove a child or person over which they have legal custody or guardianship
- The person using deadly force was engaging in unlawful activity or using the building to conduct unlawful acts
- The victim of the deadly force was a law enforcement officer entering the building or operating a roadblock or traffic stop as part of their duties as an officer, and the person using force had reason to believe the victim was an officer
If someone has the right to enter a home or building, the Castle Doctrine does not protect you if you use deadly force against them. You also cannot provoke the person into entering the home of using force. Deadly force is never warranted to protect items of personal property or to get a trespasser off a property if they are not trying to enter the building or its dire
A successful self-defense claim requires careful strategizing and presentation of evidence. If police arrest you, it may be tempting to tell them you acted in self-defense right then and there. However, if you cannot later prove self-defense, your claim may be used as an admission of a violent act. Instead, always call a criminal defense lawyer before answering any questions or making any claims to police or prosecutors.
Find Out How Our Knoxville Criminal Defense Lawyer Can Help You
At Barnes Law, we regularly represent clients facing violent criminal charges, identifying all possible defenses such as self-defense claims. After an arrest, it is always wise to exercise your right to an attorney immediately and contact our office for assistance. We can also help if you already face criminal charges and will work to reach the most favorable outcome possible.
Criminal Law Blog by The Law Office of Greg Tsioros
What to Do If You’ve Been Falsely Accused of Elder Abuse
October 11, 2017
Other than children, elderly individuals are often the most vulnerable in our society. Ninety percent of the time, family members—not hired professionals—are reported for elder abuse.
The most common types of elder abuse include: 1) physical abuse, 2) undue influence, 3) verbal-emotional abuse, 3) psychological-nonverbal abuse, 4) neglect, 5) fraud, 6) scams, 7) fiduciary abuse, 8) theft and conversion.
Being falsely accused of elder abuse is a shocking experience. If you or someone you love has been charged with elder abuse in Texas, you need an experienced criminal defense attorney as soon as possible.
Types of Elder Abuse
There are many different types of elder abuse. Among the most common types include:
- Physical abuse involves the (non-accidental) use of force that results in an impairment, physical pain, or bodily injury to an elder. Physical abuse includes confinement, hitting/shoving, shaking, inappropriate drugs, and restraints used on a senior citizen. A caretaker entrusted with providing physical care to an elder may face a charge of physical abuse if he or she is injured. The caretaker may face enhanced criminal charges when an alleged crime involves an elder. If convicted, the penalties may be severe. Because an older person is more susceptible to physical injury, pain, or impairment, it’s possible that the accused did nothing wrong.
- Undue influence (financial abuse) is often a primary element in a financial abuse case involving an elder. The prosecutor must prove that the accused coerced, tricked, or manipulated the older person, resulting in his or her loss of money or property to the perpetrator. This element may also be related to fiduciary or power of attorney abuse. For instance, the trustee of a senior individual’s estate is sued for allegedly committing financial misdeeds. He or she is accused of embezzling from the elder’s trust. In this example, the defendant may face civil or criminal charges if the accuser takes the case to the state attorney in Texas.
- Verbal-emotional abuse involves gaining control of the elder through intimidation, ridicule, or humiliation of the elder. This is another example of “taking advantage of the older person’s weaker mental state to gain control of him or her. Consistently blaming the elder, or using him or her as a scapegoat, may be used by a prosecutor to prove that verbal-emotional abuse has occurred.
- Nonverbal-psychological abuse may include menacing or terrorizing, isolating, or ignoring him or her.
- Neglect involves the failure of a caretaker to fulfill his or her obligation to an elder. Neglect is cited is more than 50 percent of elder abuse cases in Texas. The prosecutor may allege passive (unintentional) or active neglect.
- Fraud involves misuse of a senior’s financial accounts, such as bank or credit card accounts. The defendant may be accused of stealing the elder’s household goods, cash, or income checks, forging his or her signature, or engaging in identity theft.
- Scams, such as phony charities, “prizes,” or investment fraud, that prompt the elder to lose money or property.
- Fiduciary abuse (power of attorney, breach of trust) occurs when a person responsible for management of the elder’s assets uses his or her fiduciary power to access money or property in an illegal or unethical manner. Fiduciary abuse may be committed by a family member, financial adviser, or power of attorney.
- Theft by conversion involves another person’s lawful possession of the elder’s funds or property but converts this property into money for his or her personal use, without the elder’s permission.
If you are falsely accused of abusing an elder, do your best to stay calm. Sometimes, your attempts to assistant a senior family member, friend, or client can go awry. Your efforts to help may be misunderstood. Realize that many good people face charges of elder abuse.
That said, don’t assume that the truth is enough to defend yourself against a malicious charge of elder abuse. You need a strong legal defense.
Never speak inappropriately about the accuser to others. Don’t say that he or she is crazy or demented. Reserve any comments about your case for a conversation with your defense lawyer.
How to Clear Your Name When Charged with Elder Abuse
If you have been charged with elder abuse, you want to clear your name. If you’re facing a criminal elder abuse charge, you need an experienced criminal defense attorney:
- For a case involving finances, you need a criminal defense attorney with a network of experts, such as forensic accountants.
- For an elder abuse case alleging injury, you need a detail-oriented defense attorney who will thoroughly review medical records.
- Authorities might have failed to properly gather evidence—a knowledgeable defense attorney will argue that the evidence should be deemed inadmissible.
If you’re not guilty, an experienced defense attorney will do everything possible to exonerate you or have the charges dropped.
When a prosecutor recognizes that the facts of the case aren’t strong enough to obtain a conviction, he or she may agree not to pursue additional actions against you.
Look for a criminal defense attorney with experience in Texas elder law. He will do everything possible to defend your legal rights and help you survive the experience with your reputation intact.
If your accuser has previously made false accusations or has a history of mental illness, the prosecutor may wish to negotiate a plea.
How to Protect Yourself from Elder Abuse in Texas
If you’re a caregiver of a senior individual, it’s very important to understand your legal obligations to him or her and know the Texas laws surround it:
- Speak with an attorney if you provide physical oversight or caretaking of an elder. Discuss your legal responsibilities to him or her. Even if the idea of ever being charged with elder abuse seems unlikely, ask questions about how to protect yourself from elder abuse.
- Consult with an attorney if your elder names you trustee of an estate or provides you with fiduciary responsibility.
Why Speaking to an Elder Abuse Attorney Can Help
False charges of elder abuse are rising throughout the United States. A caregiver, financial adviser, family member, friend, conservator, or trustee can be accused of elder abuse. It’s important to mount a vigorous defense against any elder abuse charge. You can protect yourself if an elder, perceived as a vulnerable individual, has accused you of any type of elder abuse.
Taking a legally proactive stance can help you prevent more heartache in the future. The Law Office of Greg Tsioros will take action to protect you against false charges of elder abuse—whether you’re a friend, family member, fiduciary, trustee, or adviser. Contact us to schedule an initial case evaluation at 832-752-5972.
What Are Some Effects of Slander?
- What Are Some Effects of Slander?
- Laws for Suing Someone for Defamation of Character
- How to Sue Someone for Slander
- Two Types of Defamation
You can’t stop people from filing police reports, even if they are false. It’s up to the police to investigate the complaint and take the appropriate action. If someone lied out of hand, then the police may charge the person with obstructing a police investigation but again, this is the police’s call, not yours. The only option you have is suing someone for defamation of character if the statements made against you were completely untrue but were not expressed as an opinion.
If someone made untrue statements about you to the police and these statements caused you material harm, then you may be able to sue for defamation of character. Defamation is a catch-all term covering two different types of lawsuits – “libel” for written defamation and “slander” for spoken defamation. Filing a false police report could be either, or both, depending how the accusation was made. Defamation is not a crime, and you can’t press charges for it. Rather, you would sue the person who made the untrue statements in a civil court.
Police Reports May be Privileged
Generally, false police reports are protected from defamation claims because the law deems them to be privileged to a certain degree. This means the person cannot be held liable for the statements he made even if they could be considered defamatory. The reasoning here is that citizens should be encouraged to report potential criminals to the police without the threat of legal action if they get the facts wrong. In most states, the privilege applies as long as the person filed the report in good faith. If she did it just to annoy or harass you, then you may be able to argue that privilege does not apply. The law is complicated, so speak to a lawyer about your options.
Proving Material Harm
One of the tests for defamation is material or “cognizable” harm. This means you must suffer substantial damage that is generally measurable in terms of dollars. For example, if you were fired from your job as a direct result of someone’s false accusations against you, that would be a cognizable harm. Defamation law does not recognize emotional injury in most cases. It’s unlikely that you could file a defamation claim if all you suffered was temporary anxiety or the inconvenience of having the police question you.
Proving the Untrue Statements
In a civil defamation case, the burden is on you to prove that the accusations made against you were false. Truth is an absolute defense to defamation, so if there are facts to back up the person’s statement, you are not entitled to compensation – it’s not enough to show that the person was wrong about some of the details. You also can’t sue someone for defamation for merely expressing an opinion. You must have clear and convincing evidence that what was said about you was categorically untrue, such as documents, emails, timelines and witness testimony.
You can’t press charges for false accusations, but you may be able to sue the person who made the untrue statements in civil court and obtain a monetary award against him.
The biggest concern most people have after getting involved in an accident is whether or not their insurance will cover the damage to their vehicle. After this concern, people often worry about the other driver, particularly if they are going to file a personal injury claim against them. Though personal injury lawsuits don’t happen in all car accident cases, they do occur, which means our Albany readers may need to defend themselves against one down the road.
The first thing to keep in mind when facing a personal injury lawsuit is that, just like the plaintiff who is filing a claim against you, you too have the right to legal representation. Because you likely only have a vague understanding of the law, it’s highly advised that you seek the help of a skilled attorney who has experience defending clients against injury claims, like the attorneys here at O’Connor, O’Connor, Bresee & First, P.C.
After obtaining a lawyer, you’ll then want to sit down with them and discuss the facts of your case – what your role in the accident was, how you were driving, were you even at fault in the crash. With your side of the story in place, your attorney can begin putting together a defense strategy to refute the plaintiff’s case – perhaps even getting their claim dismissed in the process.
Aside from presenting a proper defense, there are other things that can cause a personal injury lawsuit to be dismissed. One thing is New York’s statute of limitations, which only gives plaintiff’s three years after an accident to file a claim. After that time, they lose their ability to seek compensation.
Another thing can cause a lawsuit to get dismissed is a determination from a judge stating that the plaintiff does not have grounds for compensation. Getting these types of determinations can be a challenge, though, on your own, which is why talking to and obtaining a lawyer is important when facing a personal injury lawsuit.
Sources: The New York City Bar, “Statutes of Limitation,” Accessed Nov. 13, 2015
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Being sued is already bad in and of itself. But to make matters worse, the specifics of the complaint are outright lies with no legal merit. These are called frivolous lawsuits — aimed at hurting your reputation and causing people to lose trust in you and your business . So what do you do when you have been sued with a frivolous lawsuit?
In this article, we will walk you through the definitions of frivolous lawsuits, their most common examples, and what you can do to counter sue for a frivolous lawsuit.
What is a Frivolous Lawsuit?
Frivolous lawsuits are cases with no legal merit . These involve claims that are filed despite lacking quality legal arguments or evidence. Some examples of frivolous lawsuits are:
- A person who you bumped at the bus who wasn’t actually injured
- A lawsuit against an Uber driver by a passenger who was simply irked at the driver’s choice of music
- Your neighbor suing you for trespassing because your dog walked into their pathway
Usually, the plaintiff who filed the lawsuit knows that they do not have a chance of winning the case. In fact, frivolous lawsuits are often used as a bargaining chip in negotiations. More purposes of frivolous lawsuits include:
- Harassing the defendant and forcing him/her to spend time, energy, and resources to appeal for the case to be dismissed
- Tarnishing the defendant’s reputation
- Generating media coverage i.e. advocacy groups wishing to bring buzz to an issue
Legal Grounds for Counter Suing for Frivolous Lawsuits
When faced with a frivolous lawsuit, your first reaction probably is to look into suing for defamation. However, you cannot counter sue someone for defamation when it is based on false statements. Nonetheless, you still have other options as there are legal grounds for counter suing for frivolous lawsuits, such as:
|Legal Ground||What It Is|
|Rule 11 of the Federal Rules of Civil Procedure||This requires lawyers to investigate if the lawsuit has a factual basis and prevents them from serving a pleading that’s only intended to harass the defendant.|
|Rule 3.3: Candor Toward the Tribunal||This requires lawyers to correct any errors or misstatements in their pleadings.|
|The Lanham Act||In “exceptional cases”, the court may award damages to the winning party; in this case “exceptional cases” include frivolous litigations.|
|Malicious prosecution and abuse of process||This holds the plaintiff who files a frivolous lawsuit liable in case the defendant can prove that the plaintiff filed the lawsuit out of malice.|
How to Deal with a Frivolous Lawsuit?
When faced with a frivolous lawsuit, here are some ways to deal with it:
- File a motion to dismiss immediately – You may want your lawyer to reach out to the plaintiff’s attorney and try to settle for a dismissal. However, if that is unsuccessful, you may proceed to file a motion to dismiss.
- File a counterclaim – If you are able to have the frivolous lawsuit dismissed, you may file a claim for abuse of process or a different civil claim in regards to the frivolous lawsuit. However, in some states, you may be required to file a counterclaim instead.
- Pursue a declaration of “vexatious litigant” – This applies to businesses that have been sued by the same plaintiff numerous times with frivolous claims. A vexatious litigant declaration will require the plaintiff to get a judge’s approval before they can file any more lawsuits. The state courts may also publish their name in the list of vexatious individuals.
How to Counter Sue with DoNotPay?
In theory, filing a countersuit can be straightforward. However, most of the time it requires you to go through a lot of bureaucracy, court forms, and demand letters. DoNotPay helps make the suing process faster and easier . All you have to do is:
- Log in to DoNotPay and select the Sue Now product
- Quantify your damages in monetary terms
- Select whether you want a demand letter or court filing forms
- Describe the reason for the lawsuit and submit any applicable evidence
That’s it! DoNotPay will then generate a demand letter or court filing forms for you!
DoNotPay is Your Personal Lawyer
Thousands of users have used DoNotPay to small claims suits against individuals and big companies, such as
- Insurance companies
- And so much more!