Ordering Trespassers Off Your Property At Gunpoint

[mekender]

I am not talking about holding them for the police. Rather encountering a group of people out in say a field you own and demanding they leave...

Legal... yes/no?

Thoughts?

[Flintlock Tom]

I would think that state laws would govern what actions were allowed.
Generally speaking, in California at least, you must ask them to leave and they are only trespassing if they do not. Otherwise the use of deadly force, which includes pointing a gun, is governed by the perception of eminent death or great bodily injury.

[Combat Controller]

Here it has to be at night or they have to be engaged in some type of mischief. Pretty much it's not a good idea unless you are threatened IMHO.

[mekender]

I have been looking for a few hours and the only cases where I can find that someone was charged for doing that is where people either held the people at gunpoint or fired "warning" shots at them...

I can find nothing about someone simply pulling a "get off my law" move and getting charged.

[Combat Controller]

Sometimes what's legal and what's advisable are two different things. I tend to not be a dick and rolling up hot tends to be a dick move unless I have a real good reason. That is very narrowly defined as if I am that froggy I'll get some cover and plink instead of strut. I like to walk quietly and carry a big stick.

Not that I haven't been carrying on my land and encountered trespassers. I talked to them but I never had to draw on them or intimate I would intimidate.

[Aglifter]

Pretty much everyone, back home, would be visibly armed if they saw a stranger on their land. Never had one pointed at me, but I didn't think anything was strange about a man having a shotgun in a "low ready" position when I had to ring his doorbell at night. (Nor did it strike me as strange for a man to have a revolver in his hand when he answered the door.) Now, if it was leveled at me, I would think something was odd - honestly, I probably would have tried to check around to ensure that he's really the homeowner, etc.)

[Combat Controller]

Well, I'm always strapped so answering the door sure. I was thinking of carrying a rifle or open carry of a handgun...

[mekender]

The situation in question is that a local found 12 people in 2 vehicles he did not know on his property without his permission. They had to drive through a gate clearly marked as no trespassing to get there. He was armed but didnt draw. They are claiming he did and a detective interviewed him for investigation of kidnapping and assault by pointing a pistol.

First of all someone stated that pointing a gun is deadly force.

Here is what I came up with in my online searches:

Pointing a gun at someone is the use of deadly force.

No it is not... It is defined in state law as assault by pointing a gun NC G.S. 14-34.

Deadly force is actually shooting the gun at someone.

Further, the criminal summons sheet for NC that covers misdemeanor assault has this as one of the check marks.

V. ASSAULT BY POINTING A GUN [G.S. 14-34] ___________________ by intentionally pointing a gun, __________________________, at such person without legal justification.

- form aoc-cr-145

So there are legal justifications for actually doing so...

LOWE v. DEPARTMENT OF MOTOR VEHICLES says:

legal justification must be made to appear, whether it be an individual who intentionally points a pistol at his assailant in the exercise of a perfect right of self-defense or an officer who does so in good faith in the discharge of his official duty and when necessary or apparently necessary either to defend himself or to make a lawful arrest or otherwise to perform his official duty.

However,

State v. GULLIE, 385 SE 2d 556 - NC: Court of Appeals 1989 says:

the presence of legal justification is a defense which must arise upon the evidence.

and

The "legal justification" relied on by defendant in this case is self-defense.

That implies that there MUST be other legal justifications to GS 14-34.

Additionally, NC law makes no reference to any form of self-defense other than lethal self defense. By omission it would appear that grabbing someones wrist and breaking it would be illegal even if it were in self defense. It is interesting to note that in some recent cases in other states it has actually been ruled that lethal force does not require a duty to retreat due to a castle doctrine but non-lethal force does (Indiana I believe it was).

I can find no other cases where "legal justification" is referenced alongside 14-34 in my searches of state cases that are online. It is highly likely that there are more that are not present in online searches.

My contention is that encountering 12 people that are unknown to you on your private property illegally would easily be "legal justification" for 14-34. You would have to probably prove it in court if it was decided that you needed to be charged with it but I cannot fathom a conviction when you argue that encountering 12 unknown persons that were in the act of committing a criminal offense was grounds for you to believe that they posed a threat to you. I also cannot imagine a DA actually charging you with 14-34 if all you did was order someone off your property.

As I stated earlier, the idea of disparity of force would apply should they actually advance on you in a threatening manner and you would probably have zero problems legally if you used lethal force.

If, as some have argued, 14-34 did apply in this situation then it would also apply if you caught someone in your back yard at 3 am and there is no way in hell you can convince me that it would apply in that case. After all trespassing in your empty field and trespassing in your back yard are viewed as the same offense under NC law no matter the time of day or night.

[Aglifter]

Kidnapping is an interesting choice... Unless NC has some v. odd laws, sounds like something v. strange. Now, that should have been a pretty slam dunk case for the sheriff to come and arrest the people for - but the South has considerably weaker trespassing laws than TX or the West.

[Combat Controller]

Hmmm... Twelve people would have made me nervous too. Well the witness statements are all jumbled up usually, he should get no trouble even if he did point a gun at them. If they are all exactly the same a good investigator can show it was a setup. There is no objective witness so it can be a clear case of his word against theirs and they were provably in the wrong. IMHO, I'm not a lawyer etc. but I don't think the charges will go very far.