Subject

In Rensselaer County, New York, many State Troopers in the Brunswick and Schodack Town Barracks have been promoting, inciting, aiding and abetting Trespass (e.g., ATV-trespass) by violent and belligerent people, by telling the public that Landowners do not have the right and the full authority to Stop and Arrest Defiant Trespassers. Some particularly ignorant Troopers have also been telling ATV-riders that once Posted-signs have been torn down, ATV-riders can enter private property without being subject to arrest. To the contrary, VTL section 2403(3) states that ATV-riders can be arrested (e.g., by landowners) for entering even unposted private land without permission of the landowner).

New York Penal Law section 35.10, titled "Justification; use of physical force generally," prescribes:
"The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances: … "6. A person may, pursuant to the ensuing provisions of this article, use physical force upon another person in defense of himself or a third person, or in defense of premises, or in order to prevent larceny of or criminal mischief to property, or in order to effect an arrest or prevent an escape from custody."

The Troopers in Rensselaer County have been falsely telling members of the public that the trespassing offenders may use Physical Force to forcibly resist any Expulsion, Detention, and/or Arrest attempted by landowners. The result is that trespassers in Rensselaer County are becoming extremely brazen, have been pointing guns at land-owners, threatening to run-over landowners with ATVs, burning their property, and boldly daring landowners to forcibly arrest them, and do not respect the legal authority of landowners to use Physical Force necessitated by their defiance, resistance and threats.

Some Troopers also seem to think that urban landowners are the only land-owners who have the right to deploy "Severe Tire Damage" type spikes (e.g., nails-in-boards) on their POSTED land to prevent vehicular trespass. All landowners, including forestland-owners and farmers have the privilege to inactivate trespassing vehicles that defy barriers and/or Posted warnings. Troopers in Rensselaer County seem to think it is their duty to insure that private land is kept "safe" for recreational use by defiant (ATV) trespassers. Troopers in Rensselaer County have been known to tell at least one landowner that if the landowner really wants to be free of trespassers defying his POSTED signs, he just has to allow some individual Troopers to Hunt deer on his land (for free).

The public comments and conduct of Troopers in Rensselaer County have already lead one young POSTEDsign-defying ATV-trespasser to punch a 69 year-old man who tried to detain and arrest him by taking the keys to his ATV. When the landowner earlier asked the ATV-punk to leave, the punk just sat there on his ATV and threatened: "You just wait to my friends get here." (His ATV-gang was heard nearby) The result of punching the old man, because the old man had been deer-hunting (till his hunting was rudely interrupted by the ATV-trespasser) and was holding a deer rifle, was that when he involuntarily fell and hit the ground, the gun accidentally discharged, shooting the young punk in the ankle. The Punk created and assumed the risk of causing the old man's gun to accidentally discharge when the punk decided to unlawfully punch the man who was lawfully arresting him.

To aggravate the existing problem of bold and violent trespassers in Rensselaer County, these same Troopers made public statements, in the form of accusatory instruments, to the effect that the young ATV-punk did NOT endanger the old man by punching a man lawfully holding a gun, but rather that the old man endangered the punk by not expecting to be punched by the punk. The State Police in Rensselaer County have no competent sense of personal responsibility, and seem to have a Socialist agenda against Land-owners.

Would the State Police charge a police officer for "reckless endangerment" when a belligerent motorist punches him, knocking him down, causing his gun to accidentally discharge? It was in the newspaper that they would not. If someone walks up to a hunter and unlawfully punches him, can he complain if he is accidentally shot when the hunter involuntarily falls down on his ass? Landowners should not be discriminated against by the State Troopers in violation of the State Constitution, which guarantees equal protection of the laws.

The Policies adopted and enforced by the NYS Troopers are characteristic of Socialist thought, in which it is presumed that "land" cannot be private "property" like other forms of property. Adolf Hitler is a leading expositor of modern socialist views on land-ownership:

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

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

The anarchy in Rensselaer County today is a direct consequence of the idea, introduced by NYS Troopers and by others, that "land" is somehow less worthy of protection and of respect as "private property" than other forms of property. Troopers stationed in Rensselaer County, and the State itself, are going to be SUED even more than they have been sued already, (expect an avalanch of lawsuits by many landowners, particularly by forestland-owners and by farmers) if the attitude and education of the State Troopers towards the legal rights of NY land-owners is not corrected. Corrective education should be undertaken IMMEDIATELY, before NY Troopers in Renssealer County have more blood on their hands as the result of further unlawful violence initiated by defiant trespassers.

By telling prospective trespassers that Landowners do not have the right to touch, push, shove, and threaten and brandish weapons in order to forcibly expel or arrest defiant trespassers (strangers), the State Police have created a species of trespasser in Rensselaer County who are quite willing to defiantly trespass in the presence of landowners and to use (Unlawful) Physical Force to overcome any lawful attempt by landowners to expel or remove or to arrest invaders. In the case of ATV-riding trespassers, these are even more bold, because they hide their identities behind their full-face masks, and their unreadable or non-existent plates.

Some State Troopers seem to think that the landowner's statutory right to Use "Physical Force" to remove or to "arrest" a trespassing stranger does not include the right to harmlessly carry and brandish (menace) a gun. These troopers are mistaken. Common-law "assault" (e.g., holding an arrested offender at gun-point for delivery to the police, or safely marching a trespasser off the premises at gun-point, is a well-established landowner's privilege. It is much safer than manually pushing or dragging a stranger.

"The ownership and possession of property confer a certain right to defend that possession, [including] a defense of it which results in an ASSAULT and battery...."

The Penal Law of New York does not impair the legal right to commit common-law "assault" with justification. The term, "Physical Force" includes acts of constructive force, such as brandishing or safely pointing a gun at a person. If you doubt this, then look at Penal Law section 35.27, which prescribes:

"A person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer when it would reasonably appear that the latter is a police officer or peace officer."

If pointing an unloaded gun, or brandishing a gun (which is not per se "deadly force" "capable" of causing injury) are not included within the term "use physical force", then it is still legal, under PL s 35.27 for citizens to resist "unlawful arrest" by pointing and brandishing guns at mistaken police officers. THAT RESULT was not contemplated by the writers of Article 35 of the NY Penal Law who intended the term "physical force" to include all forcible acts, including mere physical Threats of Deadly Force. Therefore, landowners have the right to brandish guns, and to hold offenders at gun-point, to deter them from violently resisting arrest (such as by punching landowners). Some NY Troopers (outside of Rensselaer County) do realize that citizens do have the legal right to hold non-violent property offenders at gun-point (if citizens follow the rules for avoiding "reckless endangerment"). See the article quoted below, from the Year 2000 Annual Report of the New York State Police.

Landowners have "property" rights, and privileges that go with property ownership:

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

By Mark R. Ferran BSEE scl JD mcl (RPI '92)
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If a stranger is trespassing in defiance of conspicuous "No Trespassing" or "Posted" signs or he has refused to leave unenclosed land (or any other "premises") when lawfully ordered by the land-owner (or home-owner, store-owner, condo-owner, apartment-tenant or other lawful occupant) to do so, or the stranger is thereafter notified that he is being held for any such "offense" for the police but attempts to flee, the occupant has statutory rights to use non-deadly force (including the "mere display" of a weapon or the USE of PEPPER-SPRAY) if necessary to expel or to detain the intruder.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Penal Law 140.05, today titled "Trespass," prescribes that: "A person is guilty of [a criminal] trespass when he knowingly enters or remains unlawfully in or upon premises. Trespass is a violation." See
http://assembly.state.ny.us/leg/?cl=82&a=31 (Penal Law Article 140)
and
http://www.courts.state.ny.us/cji/140/140-05.pdf

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

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

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

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

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

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

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

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

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

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

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

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

Next, the NY High Court stated in People v. Scott, 79 N.Y.2d 474 (1992) that persons (e.g., police officers) who entered "open fields" "which consisted of 165 acres of rural, hilly, undeveloped, uncultivated fields and woodlands" that were conspicuously posted by "posting 'no trespassing' signs about every 20 to 30 feet around the perimeter of his property" were "committing criminal and civil trespass by entering the land" in defiance of those conspicuous signs. http://www.law.cornell.edu/ny/ctap/079_0474.htm
The Court specifically cited "Penal Law, art. 140, particularly 140.05, Trespass" in support of that statement.

The Court also said:

"[P]roperty rights reflect society's explicit recognition of a person's authority to act as he wishes in certain areas…. That a landowner has a legal right to exclude the public is recognized in the sections of New York's Penal Law dealing with offenses involving damage to and intrusion upon property (see Penal Law, art. 140, particularly 140.05, Trespass and 140.10(a), Criminal Trespass in the third degree [unlawful to remain upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders]; see also, Model Penal Code and Commentaries, Part II, 221.2 [1980], at 87). This "power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights" (Loretto v Teleprompter Manhattan CATV Corp, 458 U.S. 419, 435; see, Seawall Assoc. v. City of N.Y., 74 NY2d 92, 102-106; O. Holmes, The Common Law, 208-214, 244-246).

"Our Legislature has recognized the owner's right to prohibit entry on land in the posting provisions of the Environmental Conservation Law (see, ECL 11-2111, 11-2113, 71-0925, 79-0919) and in General Obligations Law 9-103.... [W]e do not dismiss so lightly the fact that the police were violating defendant's property rights and committing criminal and civil trespass by entering the [un-fenced and un-enclosed] land. As Justice Brandeis observed, "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law..." (Olmstead, 277 U.S., at 485 [Brandeis, J., dissenting]). … [The idea] that an owner can never have an expectation of privacy in open lands is repugnant to New York's acceptance of "the right to be let alone" as a fundamental right deserving legal protection. …
"We hold that where landowners fence or post "No Trespassing" signs on their private property or, by some other means, indicate unmistakably that entry is not permitted, the expectation that their privacy rights will be respected and that they will be free from unwanted intrusions is reasonable. In the case at bar, the warrantless entries of State Police … were illegal under NY Const. art I, 12. That the property was posted with "No Trespassing" signs is undisputed."

People v. Scott, 79 N.Y.2d 474, 583 N.Y.S.2d 920 (1992).
http://www.law.cornell.edu/ny/ctap/079_0474.htm
(Note: This landmark case was successfully argued by Albany Attorney Terry Kindlon).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Commercially manufactured Road Spikes like Antech Co's Guardian (http://www.antech.com/Guardian/TC/IG%20CB.html) or DeltaScientific's Sabre Tooth and DoorKing's Model 1610 traffic spikes (which can do much more tire damage than simple round nails) are currently employed at gates of the Wichita Mountains National Wildlife Refuge campgounds and at the Great Swamp Watershed in NJ (http://www.greatswamp.org/gsmappg1.htm), and at numerous parking lots, airports, and drive-in theaters and numerous private properties around the country.
See: DeltaScientific's SabreTooth http://www.deltascientific.com/gallery13A1_1.htm ("The Sabre Tooth will puncture all pneumatic tires including steel belted radial and large truck tires.") "Provides extremely effective one-direction unmanned traffic control by puncturing the tires of errant vehicles." (http://www.antech.com/Guardian/TC/IG%20CB.html)
Doorking's Model 1610 traffic spikes: http://www.agwaccess.com/doorking2.html
PMG's "roadspike" product is marketed for "perimeter control" for security purposes:
http://www.law-enforcement.com/buyersguide/SubcategoryPage.cfm?MajCatCodeParam=18&MinCatCodeParam=050

Commercially manufactured caltrops (called "PORTABLE ROADBLOCKS") are recommended for "use with extreme caution and discretion" to "protect private property." http://www.spymall.com/catalog/gadgets-index.htm

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

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

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

WHAT IS NON-DEADLY PHYSICAL FORCE?

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

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

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

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

The case of Maine v. Glassman, 2001 ME 91 (2001) teaches:
"Nondeadly force is defined as "any physical force which is not deadly force…
… In Williams, the defendant loaded a handgun, and while holding it, made verbal threats against another individual. The issue was whether the defendant's conduct was deadly force … or … justified use of nondeadly force….
"We determined that "the Legislature did not intend … `deadly force' to include a threatened use of such force," and concluded that "[t]he evidence showed, at most, that what the defendant did was to threaten the use of deadly force; that threat, as a matter of law, did not constitute `deadly force.'" … Subsequently, citing Williams , we have held that: "[a] threat to use deadly force is the equivalent of nondeadly force."
http://www.courts.state.me.us/01me91gl.pdf

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

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

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

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

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

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

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

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

Pursuant to Penal Law section 265.20(14), an Adult may lawfully "possess" Pepper Spray or Tear Gas "for the protection of a person or property" and he CAN LAWFULLY "USE" Pepper Spray or Tear Gas "under circumstances which would justify the use of physical force pursuant to article thirty-five of this chapter."
http://assembly.state.ny.us/leg/?cl=82&a=68

Therefore, an Adult may lawfully carry and USE Pepper Spray "in defense of himself or a third person, or in defense of premises, or in order to prevent larceny of or criminal mischief to property, or in order to effect an arrest or prevent an escape from custody." PL 35.10(6). http://assembly.state.ny.us/leg/?cl=82&a=12

Notwithstanding the land-owner's legal right to use "force" (i.e., the right to inflict "physical injury" including "substantial pain") understand that if a landowner actually causes any "physical injury" to a trespasser, the trespasser has a motive to hire a Attorney to sue the landowner to extort a settlement. If the intruder is a recreational user of land, the NY landowner might be permitted to invoke the NY Recreational Immunity Statute (GOL 9-103) to seek immunity from the suit for any "pain" or other "physical injury" lawfully inflicted pursuant to PL Article 35 as a lawful "use of" land. Justified Intentional injuries inflicted upon intruders have been held to be NOT a "willful or wonton" act in a California case, but rather constitute the lawful "use of" land. See, People v. McManus, 67 NY.2d 541 (NY 1986). The same principles, originally embodied in the Common Law of NY (NY Const. Bill of Rights Art. 1 s. 14) should still provide comparable immunity-from-suit in a case involving a use of necessary and lawful force upon a defiant intruder. http://assembly.state.ny.us/leg/?co=3
But, Judges are a law unto themselves when clear statutes are not provided by the People.

THE LAND-OWNER'S PRIVILEGE TO ARREST A DEFIANT INTRUDER.

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

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

New York Penal Law, sec. 35.30, titled "Justification; use of physical force in making an arrest or in preventing an escape", provides:
"4. A private person acting on his own account may use physical force, other than deadly physical force, upon another person when and to the extent that he reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he reasonably believes to have committed an offense [in his presence] and who in fact has committed such offense; and [after giving due notice of the grounds for the arrest] he may use deadly physical force for such purpose when he reasonably believes such to be necessary to:(a) Defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or (b) Effect the arrest of a person who has committed Murder, manslaughter in the first degree, Robbery, forcible Rape or forcible sodomy and who is in immediate flight therefrom.
http://assembly.state.ny.us/leg/?cl=82&a=12

Therefore, Pepper-Spray may be used "to effect an arrest or to prevent the escape from custody" even if the intruder has made no attempt or threat to harm the land-owner; And, THERE IS NO DUTY TO RETREAT (PL s 35.10(6)) while defending one's self WHILE ARRESTING a guilty trespasser (PL s 140.05), if one has complied with ALL the regulations prescribed in CPL Article 140 (e.g., 140.30-140.45). READ:
http://assembly.state.ny.us/leg/?cl=25&a=22

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

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

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

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

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

For more information about Citizen's arrest, see also:
http://www.sierratimes.com/archive/waters/edrw081100.htm

http://www.constitution.org/grossack/arrest.htm

http://www.thesunlink.com/news/daily/march99/0316a1d.html

http://www.counterpunch.org/pipermail/counterpunch-list/2000-May/000341.html

http://www.villagevoice.com/issues/0024/ridgeway.php

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As a NY Landowner who must repeatedly confront and arrest gangs of ATV-trespassers riding ATVs on POSTED private land in Rensselaer County, NY (See "The ATV-Trespass Problem" at http://billstclair.com/ferran ) I have complete empathy and understanding for the situation of the Arizona Landowners who must confront and arrest swarms of trespassing illegal immigrants. Similar to the Arizona Landowners' experience combating the AZCLU's socialist views and contempt for their property rights, I have found the NYCLU to be utterly indifferent to invasions of the property rights of NY landowners. The Trespass Problem in Arizona is similar to the ATV and Hunter trespass problem in certain parts of upstate NY, and both sets of landowners are dissatisfied with the protection provided by the local constables, and have realized the need to resort to self-defense of premises and citizens' arrest.

The following article recently appeared in the Albany, NY paper (Times Union), discussing the problem of ATV-trespass in the Rensselaer County, NY, where my family owns 600 acres.

Putting the brakes on ATVs Troy-- Proposed Rensselaer County law would fine owners of all-terrain vehicles for improper use

By MICHELE MORGAN BOLTON (mbolton@timesunion.com), Staff writer First published: Thursday, December 26, 2002

"A fresh blanket of snow on miles-long stretches of open fields and power lines is all it takes to warm the hearts and rev the motors of the state's 250,000 all-terrain vehicle owners. And while many of those operators are licensed and otherwise comply with the law -- and the good graces of private property owners -- a growing number don't, said lawmaker Ed Swartz. The Schodack Republican is proposing legislation to implement a county fine for improper use of an ATV and for operating an unregistered vehicle. Increasing registration fees could help fund enforcement efforts, he said. Swartz said he has been researching the potential legislation for about four months after receiving a number of complaints from residents in his rural district who claim ATV operators are riding rampant through privately-owned fields and yards. Many of those concerns have come from fellow Schodackians, he acknowledged. "More and more residents are upset because of disruptions or damage to their property," Swartz said. "It's clear something needs to be done to protect property owners." Some reports have indicated that more than 50 riders at a time, in some instances, have come from out of town to take advantage of the wide, open spaces, he said. Few, if any, have permission to traverse the routes that they do. The frustration is shared by residents and police as the number of ATVs has increased in recent years, he said. Carefully regulating usage may be the only way to protect everyone's rights, he said. New York state has more than 75 organized ATV clubs, but many users prefer to ride on their own. Owners are required to register their equipment with the Division of Motor Vehicles, paying a $15 annual fee, Rensselaer County Clerk Frank Merola said. And while most vehicles are registered, the inherent problem occurs when they are ridden on private property, Merola added: "You're not going to catch them unless you're chasing them on an ATV yourself." Incoming legislator Keith Hammond said ATV riders from North Greenbush and East Greenbush regularly maneuver their machines through a huge gravel pit near his 100-acre Poestenkill farm and then indiscriminately cross property lines. "I have some thought about this," he said, of Swartz' proposition, which he said he also backed a number of years ago. "These people ride your property like they own it." Poestenkill has already implemented an ATV registration process that requires riders to not only buy licenses, but carry written permission at all times while on private property. "If they don't have it they can't be there," said Hammond. Swartz said he has asked the Legislature's lawyers to review his ideas. He also said he knows it first may require action from the state before the county can implement any independent policies. "ATVs are great for recreational purposes when properly and safely used," he said. "And the vast majority of riders are respectful and courteous. However, there is a small minority of riders that have little respect for other people's property."

On January 1, 2002, the Albany Times Union noted again that Renssealer County Landowners "want action on ATV drivers using private property without obtaining permission. Elected officials are grasping for solutions after landowners with guns ran off trespassing all terrain vehicles twice in the last 18 months." TU 01/01/2002

And, on January 3, 2003, Albany TU columnist Fred LaBrun stated that in Rensselaer County, "these instruments from hell" are running amok and "cops make an all-too-infrequent stop of some yahoo churning up the landscape on somebody else's private property. ... There have been a number of testy confrontations recently in the rural parts of the county between ATV riders operating illegally and property owners. Something very bad is going to happen if this persists. Private property is, after all, private property. Owners get edgy about that."

The Albany TU already reported, in November of 2002, that: "A teenager [seated on a parked ATV] was shot in the ankle by a [landowner] deer hunter as they scuffled during an argument that was sparked by the boy allegedly trespassing on private land, police said." [The ATV-rider had refused to leave the land, threatened and punched the 69-year old landowner who was holding a deer rifle, causing the older man to fall down and causing the rifle to accidentally discharge, striking the trespasser in the ankle. The local police falsely arrested and charged the landowner for "recklessly endangering" the trespasser, as if the landowner was supposed to expect to be punched and knocked down while holding a rifle, and to protect the trespasser from that risk.]

The local District Attorney, who reputedly rides ATVs, has announced plans to practically abolish private property rights in the County in order to make private land completely "safe" for ATV-trespassers. See http://www.propertyrightsresearch.org/dear_fellow_property.htm

A number of activist groups, including the Arizona Civil Liberties Union and the Border Action Network, are asking Arizona Gov.-elect Janet Napolitano to step in and stop private property owners along the Mexican border from engaging in "vigilantism."

At least three such property rights groups are now patrolling the Arizona-Mexico border, endeavoring to round up smugglers and other illegal alien invaders, whereupon they turn them over to local and federal police. The property owners targeted in this protest are not known to have committed any illegal violence.

This is apparently too much for Pamela K. Sutherland, legal director of the Arizona CLU, to bear.

"We are a government of law," Ms. Sutherland asserts. "The vigilantism and lawlessness they represent cannot be tolerated and we won't let their behavior go unchecked."

Jennifer Allen, co-director of the Tucson-based Border Action Network adds that the illegal aliens "have civil rights and human rights that take precedence over defending the country."

Let's stop and consider this assertion for a moment. Which is the more vital human right -- the one most deserving of defense? The right to work hard, save your earnings, and buy a piece of land, whereupon you then "own" that piece of real estate as your "private property" ... or the right to bypass proper legal procedures in order to enter someone else's country, then further to trespass on someone else's private property in the country you've entered illegally, camping there without his or her permission?

Here's a hint: The first principle -- private property rights -- was the one on which this nation was based, and which helped make it the most peaceful, free and wealth-generating society the world has ever known.

The solution is for the land owners to merely call the police or the INS, the activists say. But police and the INS admit that they're spread too thin, left to resemble small children trying to catch moths with teaspoons. And on the rare occasion when they do apprehend illegal border crossers, what is their recourse? To dump them back across the border and watch them try again tomorrow night, of course.

In fact, the property rights groups are performing a valuable public service -- and as long as they do not engage in any illegal activity while protecting their own lands, they should be encouraged to continue their patrols.

Similar to the Arizona Landowners' experience combating the AZCLU's socialist views and contempt for their property rights, I have found the NYCLU to be utterly indifferent to invasions of the property rights of NY landowners. The Rensselaer County District Attorney, who reputedly rides ATVs, seems to be instigating offenses against land-owners in Rensselaer County by maintaining prosecution policies that protect only ATV-riders and other trespassers, at the expense of the landowners whos tax dollars pay his salary. The DA advertises on his website that he wants to make private property in Rensselaer County perfectly "safe" for ATV-trespassers, including whole "families" of law-breakers.

Note: Adolf Hitler took the same approach to acquiring and concentrating his Political Power:

Please choose to assist landowners to preserve their legal rights under the Law and in the Courts of Public Opinion. There is no need to change the Law in New York or Arizona, only a need to promote respect for it, and to enforce it. Some landowners are far ahead of the curve in this respect.

----- Original Message -----

From: Dever, Larry

To: Mark Ferran

Sent: Wednesday, January 08, 2003 10:00 AM

Subject: RE: Illegals Trespass in AZ, like ATVs Trespass in NY

Sir,

I very much appreciate your perspective and comparisons regarding the trespass issue. You are absolutely correct and I can assure you my defense of privacy and property rights of the citizens of Cochise County is beyond reproach. Sadly, a recent portrayal by an uninformed, moronic and myopic individual suggests otherwise. He knows not of what he speaks. Good luck with your legal and lawful pursuit of assuring the freedoms we cherish retain their value.

Sheriff Larry A. Dever

This essay collects articles about the ATV Trespass problem occurring in NY and throughout the US and Canada, and about the way some landowners are lawfully resisting intrusions by ATV trespassers. Typical situations:

1) [Pittstown, Rensselaer County, NY] "Phil Kelly ... finds himself constantly chasing off and being threatened by illegal hunters and all-terrain vehicle riders on his posted property. ... [T]he landowner said ATV riders began cutting through and even stealing gates off of one section of his property ... They destroyed around $6,000 worth of gates .... "I've had neighbors and people at the Country Store threaten to burn me out and put a bullet in me," Kelly said. "Little did I know serious they were." [They burned down his storage barn and attempted to enter his home]
"It's like something out of 'Deliverance'. ... the State Police ... make me feel like the criminal instead of the victim." http://www.troyrecord.com/site/news.cfm?newsid=2721020&BRD=1170&PAG=461&dept_id=7022&rfi=8

2) A Farmer stopped a group of riders and told them to leave. He was beaten up. http://www.tribune-chronicle.com/news/story/03602002_new11.asp

3) "ARSON. A male on Rutland Way, Stephentown [Rensselaer County, NY], said his vehicle, which was parked along a trail to deter ATV use, was damaged by fire. Officer: Trooper Steve Kovaleski." Albany (NY) Times Union, Police Blotter (Wed. July 28, 1999 p. F2)

4) ATVs are frequently used by Marijuana "Farmers" and other intentionally-masked criminals. "All the dopers want is a new ... ATV to drive up to their patch."

"Since 1998, the state line between Kentucky and Virginia has become a crisscross of trails created by all-terrain vehicles used by growers to get to their marijuana plots...." http://www.mapinc.org/drugnews/v00/n1430/a09.html

"The cultivators are 'quite frankly, very wealthy, Four-wheel drive trucks ... ATV's. They usually have expensive toys. [M]arijuana growers often carry firearms.'" http://www.cannabisnews.com/news/thread5729.shtml

In Rensselaer County, NY, ATVs appeal to the "cultivators" and all other sorts of "recreational" criminals who can use them to trespass, commit acts of violence or arson, and escape arrest anonymously wearing full-face masks: "Members of the State Police Community Narcotics Team, the Troy Police, the federal Drug Enforcement Administration and the Rensselaer County District attorney's office [arrested] four suspects [ages 22, 24, 25, and 33] thought to be connected in a mid- to upper level cocaine-dealing operation. Authorities recovered an AK-47 rifle, a 9mm and a 45 caliber handgun [and] two ATVs and a snowmobile allegedly purchased with the proceeds from drug sales." Troy Record, Nov. 28, 2002.

This essay collects many similar articles and a discussion of the New York statutes that authorize citizens to forcibly stop and to perform citizen's arrests of ATV trespassers in NY. Save, and print copies of the linked articles in case they cease to be maintained online. Feel free to forward or post.

In 1988, Time Magazine described how "roaring ATVs are shattering the peace" and introduced America to a lawless subculture whose members presume that by buying (or stealing) an "all terrain" vehicle, they are entitled to intrude upon "all terrain":
"Villages on Missouri's Black River ... used to be oases of tranquillity, the destination of weekend canoeists, tube floaters and fishermen. No longer. All too often the solitude of the Ozarks wilderness is shattered these days by the whine and rumble of powerful engines. ... Locals call it "the Invasion." The ... four-wheel vehicles, running up and down the riverbed with abandon. ... For the ATV crowd, it was all just good fun. But for conservationists and others interested in keeping the river pristine, the Invasion is a nightmare ... and the law has failed to halt the nightmare. "These things destroy the ecology of the river," says Larry Koeler, a Centerville lawyer, of the ATVs. ... Horror stories abound. Former River Guide Eric Dunn recalls ... "a young boy tried to run down me and my wife and son." ... County Sheriff Gary Barton ... and his two deputies can hardly make a dent in the rampant ATV challenge. On Memorial Day weekend they wrote scores of tickets to ATV riders who trespassed on private property or were intoxicated. ... The sheriff, who owns three ATVs himself, takes no chances. "I don't equip my patrol car with a regular rifle," he says. "I have an M-16. I leave it in the patrol car where you can see it. You have to make a show of force." Although the state conservation commission sent five agents into Reynolds County to help Barton out, it was not enough of a show to make much difference. "The ATVs still go anywhere they want." ... Sierra Club Director Hattoy charges that the ATVs permanently scar the land, kill wildlife and destroy vegetation, as well as cause noise, safety and pollution problems. Says he: "... no one has the right to chase jackrabbits until their hearts explode, or roar over desert turtles." ATV Enthusiast Buddy Bray sees it differently. "I don't believe riding ATVs destroys the desert," he says. "All you kill is the bushes."
Time, 6/13/88 (Invaders on The Black River).

On the sand dunes of the Albany (NY) Pine Bush, trespassing ATVs kill the wild "bushes" called wild Blue Lupine, and so they ultimately kill the endangered Karner Blue Butterfly that depend on the bushes. In 1998, the Albany (NY) Times Union described the "serious" ATV problem in the Albany Pine Bush ecosystem:
"The Karner blue butterfly is slowly losing its fight to survive in the Albany Pine Bush Preserve, one of the species' last remaining natural habitats in the United States. The killer: humans. The latest tool of destruction: the all-terrain vehicle. The azure-winged butterflies, about the size of a quarter, are being threatened by burly ATVs illegally churning through the property, Pine Bush officials said Tuesday. As they pop wheelies and spin doughnut-shaped grooves into the earth, ATV riders are also mowing down the wild blue lupine, the only plant that Karner caterpillars eat, said Preserve Steward Joel Hecht. ``If you impact the plant, you're going to directly impact the Karner blue butterfly,'' he said. This region was once home to hundreds of thousands of the flying blue lepidoptera... Now, there are only a few hundred in the Pine Bush. ... The species is listed by the federal government as ENDANGERED. ATVs aren't permitted in the 2,400-acre Pine Bush, said ... Ranger Joseph Hess, the lone DEC officer patrolling the preserve. But ... riders ignore posted signs. Anyone caught riding a vehicle over Pine Bush land could face a $100 fine and up to 15 days in jail, Hess said. ... 'Without intervention, they will be lost.''"
Albany (NY) Times Union, September 2, 1998, by Paul Zielbauer. (Title/subtitle: "ATVS A MENACE IN KARNER BLUE'S BACK YARD Vehicles threaten butterfly's food source in Pine Bush, officials say")

See also "GOODBYE KARNER BLUE"
http://headlines.igc.apc.org:8080/enheadlines/992560769/index_html
("New England's only wild population" of the endangered Karner blue butterfly "appears to have died out")

The "lone ranger" in the Albany Pine Bush has not evolved the super-human ability to enforce the law in all parts of his territory at the same time. But the ATV industry has been busy flooding the land with ATVs. ATV manufacturers knowingly place ATVs into the hands of people ready, willing, and able to intrude upon any and "all" unguarded public or private "terrain".
"Industry-wide ATV retail sales increased during the first quarter [of 2001] in spite of the concerns of a slowing economic environment."
"American Honda's ATV sales also soared in 2000, ending the year at 211,152, an increase of 29.6%. Once again Honda exceeded the ATV industry's healthy growth rate of 18.8%..."
Arctic Cat Dealers advertise: "New this year!! A smaller ATV just for kids!!"

"The problem isn't the guy who rides an ATV around his yard and uses it to haul a few trees or work around the farm, it's the yahoo mentality out there that you can rip and roar with these things and the more you tear up someone's property the more fun it is. ... [T]he problem is enforcement."
http://www.canoe.ca/CNEWSLaw0107/15_off-cp.html

"The problem is ATV abuse of landowner's rights.... [T]he growing misuse of ATVs ... is the outdoor recreation issue of the decade."
http://www.theunionleader.com/articles_show.html?article=5937

New York's RULES FOR OPERATION OF ATVs are prescribed in the Vehicle and Traffic Law, including section 2403.

http://assembly.state.ny.us/leg/?cl=128&a=82

The NY Rules (above) and brochures distributed by the NY DOT state:
"To operate an ATV on private land, you must have permission of the land owner or lessee. If you receive permission, make sure you know the boundaries of the property, and respect any special restrictions or requests of the land owner."
http://www.nydmv.state.ny.us/broch/c29.htm

The laws of New York state, though sufficient on their face, have failed to curtail ATV trespass, and ATV-riding trespassers are increasing in numbers. Stopping ATV trespassers is generally not a priority of the police. The People of the state of NY simply could not afford to pay for the amount of Police time that would be necessary to control the ATV trespass problem. Not even to protect the endangered Karner Blue Butterfly the police presence in the Pine Bush been increased. Albany's Common Council President, Helen Desfosses, explained: "In addition to Albanys important efforts to get more police onto the streets, .... citizen involvement is crucial to crime prevention." (http://www.albanycouncilpres.com/Articles/albany-future.shtml)

It is obvious to many that if the ATV problem is to be effectively controlled, citizen-enforcement of the law must be undertaken by those who recognize their civic duty, and who are informed of the privileges and risks of citizen's arrest. The risks of personal confrontations with defiant trespassers are grave. Many Police Officers have been run-over by ATVs while trying to stop or apprehend ATV offenders. Even the youngest ATV riders are fully aware that ATVs can be used as Weapons.

"Teen Arrested For Running Over Deputy: A 16-year-old accused of running over a Davidson County deputy with an all-terrain vehicle was arrested. Investigators said that Deputy Chris Stillwell was attempting to stop the teenager when he was struck by the vehicle. The teen was reportedly the driver of the ATV. There is no word on the condition of the deputy. The teen is in the Davidson County Jail under a $75,000 bond."
Yahoo News, October 11, 2001 (No longer posted on web) ThePiedmontChannel.com

The fact that ATV-trespassers often wear masks (on helmets) concealing their faces can embolden many of them to behave as very brazen criminals when confronted by landowners:

Audubon Magazine reported:
"The 500 combat missions flown by Colonel George Buchner over Vietnam didn't prepare him .... Buchner found trespassing ATV operators popping wheelies in his private trout stream. When he demanded their names, one rider dismounted and attacked him, breaking his nose. When he fenced his posted stream and property, ORV operators cut the wire and pulled the stakes. When he reinforced the stakes with cement, they knocked them down. [H]e received death threats, his streetlights were shot out, his mailbox smashed, his driveway seeded with broken glass, the eight-strand fence on his Christmas tree farm cut in 88 places, and his wife run over. "Robin was screaming," he said, "and the guy calmly cranked up his machine and finished running over her. He had come through multiple barriers, multiple posted signs, three fences, and a gate. She had a hematoma extending the length of her leg." In July 1996 Buchner confronted two trespassing ATV operators, one of whom knocked him down. "Basically, [ATV]s ran me out of Michigan," Buchner told me from his Arizona home."
http://magazine.audubon.org/incite/incite0003.html

On Dec. 26, 2002, the Albany, NY Times Union, in at article titled, "Putting the brakes on ATVs" reported:

"ATV operators are riding rampant through privately-owned fields and yards [in Rensselaer County, New York]. "More and more residents are upset because of disruptions or damage to their property," Swartz said. "It's clear something needs to be done to protect property owners." Some reports have indicated that more than 50 riders at a time, in some instances, have come from out of town to take advantage of the wide, open spaces, he said. Few, if any, have permission to traverse the routes that they do. The frustration is shared by residents and police as the number of ATVs has increased in recent years, he said. ... And while most vehicles are registered, the inherent problem occurs when they are ridden on private property, Merola added: "You're not going to catch them unless you're chasing them on an ATV yourself." Incoming legislator Keith Hammond said ATV riders ... "These people ride your property like they own it." ... "ATVs are great for recreational purposes when properly and safely used," he said. "And the vast majority of riders are respectful and courteous. However, there is a small minority of riders that have little respect for other people's property."

The full-face masks (e.g., helmets and visors) which ATV-riders wear, and which they often refuse to remove when confronted by landowners, tend to embolden them to disrespect landowner's rights, and even to threaten landowners and to commit crimes against landowners in retaliation. As the Georgia Supreme Court observed:

"We know that '[p]ublic disguise is a particularly effective means of committing crimes of violence and intimidation. From the beginning of time the mask or hood has been the criminal's dress. It conceals evidence, hinders apprehension and calms the criminal's inward cowardly fear.' M. Abram & A. Miller, "How to Stop Violence! Intimidation! In Your Community" (August 15, 1949). A nameless, faceless figure strikes terror in the human heart. But, remove the mask, and the nightmarish form is reduced to its true dimensions. The face betrays not only identity, but also human frailty.

New York state statutes provide ample power to landowners to exclude ATV trespassers and to volunteers to defend public and private property from damage, and to make arrests:
"6. A person may, pursuant to the ensuing provisions of this article, use physical force upon another person in defense of himself or a third person, or in defense of premises, or in order to prevent larceny of or criminal mischief to property, or in order to effect an arrest or prevent an escape from custody. Whenever a person is authorized by any such provision to use deadly physical force in any given circumstance, nothing contained in any other such provision may be deemed to negate or qualify such authorization." NY Penal Law s 35.10(6)
http://assembly.state.ny.us/leg/?cl=82&a=12

On January 3, 2003, Albany Times Union political columnist Fred LaBrun stated that in Rensselaer County, New York, "these instruments from hell" are running amok and "cops make an all-too-infrequent stop of some yahoo churning up the landscape on somebody else's private property. ... There have been a number of testy confrontations recently in the rural parts of the county between ATV riders operating illegally and property owners. Something very bad is going to happen if this persists. Private property is, after all, private property. Owners get edgy about that." http://www.timesunion.com/AspStories/story.asp?storyID=88794&category=REGION&newsdate=1/3/2003

Fortunately, NY law provides alternatives to personal confrontations. The highest Court of New York has declared that landowners have a common law privilege to "destroy" the "instrument of trespass" (e.g., vehicle) used by "defiant trespassers." People v. Kane, 142 N.Y. 366, 37 N.E. 104 and 131 N.Y. 111 ("The ownership and possession of property confer a certain right to defend that possession, [including] a defense of it which results in an assault and battery, and that which results in the destruction of the means used to invade and interfere with that possession.") In Reed v. Esplanade Gardens. Inc., 91 Misc.2d 991, 993 (1977), the court noted that when dealing with the chattel of a trespasser on the true owner's land the law is that "[I]n such circumstances THE LANDOWNER IS PRIVILEGED TO deal with the personal [property of another] in a manner which would otherwise be a trespass [to chattels, including DETENTION or DAMAGE] or a conversion [e.g., the complete destruction, distress, or disposal] IF THE ACT IS reasonably NECESSARY TO PROTECT THE ACTOR'S INTEREST [e.g., necessary to "prevent or terminate" a trespass upon his premises]. However, "the actor may be liable if he uses unreasonable [i.e., un-necessary] force which causes harm to the chattel [unnecessarily]." Reed. Accordingly, a NY land-owner is privileged to damage an ATV as "necessary" to terminate a trespass, or to effect an arrest. Further, once an ATV is discovered, and captured trespassing on private property in defiance of conspicuous "No Trespassing" signs, the New York land-owner may be privileged to impound and detain the vehicle until his damages are paid, pursuant to the common-law remedy of "trespass damage feasant" (also known as "distress damage feasant"). http://www.cs.tcd.ie/Proinnsias.OCillin/lawcourse/tort/trespass.htm http://69.1911encyclopedia.org/T/TR/TRESPASS.htm ; Fieldston Prop. Owners Assn. v. City of New York, 16 NY2d 267, 269; Forest Hills Corp v. Kowler, 80 AD2d 630; Forrest Hills Corp. v. Baroth, 147 Misc. 2d 404; Sindle v. NYCTA, 33 N.Y.2d 293, 307 N.E.2d 245 (1973).

Accordingly, NY Penal Law Sec. 35.05 provides: "Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when:1. Such conduct is ... authorized by law...."

NY statutes specifically authorize the use of non-deadly "force ... in defense of premises" (i.e., land). It is lawful for landowners in NY (and other common law states) to defend their land from trespass-by-vehicles by deploying roadspikes, nails-in-boards, caltrops, etc. as is customarily done at private parking lots in New York and many other states. Road spikes, caltrops, spiked fences, etc. deployed at a perimeter are generally considered to be "non-lethal" force:
http://www.zarc.com/english/non-lethal_weapons/nlt-usaf.html
www.geocities.com/SoHo/Gallery/3452/nonleth.htm
http://www.dnr.state.oh.us/policy/UseOfForceWeaponsDir.htm
http://hv.greenspun.com/bboard/q-and-a-fetch-msg.tcl?msg_id=004B4h (After "Yet another death", farmers/landowners deploy nails-in-boards to fight ATV trespass)

As noted, peaceful landowners in the US are stopping trespassing ATVs in the basically the same way that Police, parking lot owners, and drive-in movie theaters stop other types of vehicles, by lawfully placing NAILS (road spikes) in their paths. In this manner, the risks inherent in personal confrontations (between landowners and violent ATV-trespassrs) can be reduced.

Farmers seemingly have perfected the technique:
"I would start by posting the property 'Danger!!-- Private Property -- Keep Out!!' (big red letters are nice...) for a week or two, and then I would proceed to sink some nice holes in the ground on either side of the roads & drive. Fill 'em with concrete and set a hasp into it. Get a nice big board, like a 2x12 cut to span between the two hasps. Drive some nice ten-pennies into them thickly, and then put screw eyes at either end. Chain the boards to the hasps with padlocks. After they've lost a few tires, they may rethink their route. You can easily unlock one end and drag it at a right angle out of the way when you want to get thru for field work, then lock it back up at night. -- Julie Froelich, December 06, 2000."
http://hv.greenspun.com/bboard/q-and-a-fetch-msg.tcl?msg_id=004B4h

Commercially manufactured Road Spikes like Antech Co's Guardian (http://www.antech.com/Guardian/TC/IG%20CB.html) or DeltaScientific's SabreTooth and Doorking's Model 1610 traffic spikes (which can do much more tire damage than simple round nails) are currently employed at gates of the Wichita Mountains National Wildlife Refuge campgounds and at the Great Swamp Watershed in NJ (http://www.greatswamp.org/gsmappg1.htm), and at numerous parking lots, airports, and drive-in theaters and numerous private properties around the country.
See: DeltaScientific's SabreTooth http://www.deltascientific.com/gallery13A1_2.htm ("The Sabre Tooth will puncture all pneumatic tires including steel belted radial and large truck tires.")

"Provides extremely effective one-direction unmanned traffic control by puncturing the tires of errant vehicles." (http://www.antech.com/Guardian/TC/IG%20CB.html)
Doorking's Model 1610 traffic spikes: http://www.agwaccess.com/doorking2.html
PMG's "roadspike" product is marketed for "perimeter control" for security purposes:
http://www.law-enforcement.com/buyersguide/SubcategoryPage.cfm?MajCatCodeParam=18&MinCatCodeParam=050

"The Traffic Controller ... can be used as a free entrance or exit in your parking facility ... and includes 20 steel cut blade teeth." http://www.texassecuritygates.com/traffic.htm

Comercially manufactured caltrops (called "PORTABLE ROADBLOCKS") are recommended for "use with extreme caution and discretion" to "protect private property." http://www.spymall.com/catalog/gadgets-index.htm

Good & Cheap "NAILS IN THE PATH WORK GREAT."
"The 4-wheelers are trespassing and causing damage and death to pets. Here in NC the police are slow to respond (often 2 hours later) they say its a low priority issue. I asked about the boards with nails. On your "privately" owned and "posted" land you can lay boards down and if they have nails in them well it is on your land. (officially). Unofficially if the trespassers get hurt most will sue. And with our "liberal" courts the landowner is about 75% sure to loose. Wish the odds were better."
http://hv.greenspun.com/bboard/q-and-a-fetch-msg.tcl?msg_id=004B4h

Spiked fences are common in NY cities. "Mechanical devices and animals may be used for the protection of property.... Barbed wire, fence spikes, and broken glass are reasonable since they serve to exclude.... Spring guns and traps on the other hand are dangerous weapons.... Vicious dogs, with protensities to kill or seriously injure, are generally treated like mechanical devices except that a posted warning in such cases has [in New York state] served as a defense." Rights Incident to Possession of Land, sec. 28.18 Forcible Resistance Against Intruders (KF575 M367).

Pursant to New York's Recreational Use Statute, an owner of premises, even if not "posted", "owes NO DUTY to keep the premises SAFE for entry or use by others" pursuing listed activies. The statute also states that an owner has "NO DUTY to give warning of any hazardous condition or use of or structure or activity on such premises." GOL s 9-103

A California court construing language in a landowner immunity statute similar to language in NY GOL s 9-103, concluded that a justified use of physical force against a trespasser was a lawful intentional "use of" land and therefore not a "willful" act depriving the landowner of statutory immunity. Similarly, the NY High Court declared that the placement of a cable stretched across a road to stop trespassers is a lawful condition or use of land, even if the effort to give notice of the hazard proved insufficient to prevent an injury. Sega v State, 60 NY2d 183.

The NY High Court has also held that: "where landowners fence or post "No Trespassing" signs on their private property or, by some other means, indicate unmistakably that entry is not permitted, the expectation that their privacy rights will be respected and that they will be free from unwanted intrusions is reasonable." http://www.law.cornell.edu/ny/ctap/079_0474.htm

(Hunting Lands closed and spoiled because "a deer can figure out that an ATV means danger" and landowners reject ATV-use by hunters.)

Peterson's Hunting Mag, (www.huntingmag.com) Mar./Apr. 2002. p18.

(trails ruined by disrespectful ATV riders)
http://www.easterntrail.org/news/atvart.html

CITIZENS ARRESTING ATV TRESPASSERS IN NY

Citizen's Arrest in NY is authorized and regulated by NY Criminal Procedure Law Article 140 and the use of force and even deadly force for the purpose of effecting such an arrest and maintaining the safety of the citizen performing it, is authorized by Penal Law section 35.30(4) and 35.10(6). See statutes at: http://assembly.state.ny.us/leg/?cl=82&a=12

New York Criminal Procedure Law (CPL) sec. 140.30 (1) provides:
"Subject to the provisions of subdivision two, any person may arrest another person ... for any offense when the latter has in fact committed such offense in his presence."
http://assembly.state.ny.us/leg/?cl=25&a=22

In NY, private citizens have the "same authority" to make arrests of factually "Guilty" offenders as do police officers. Police have a legal duty to make arrests. Private Citizens have a civic and moral duty to make arrests. It is however extremely important to completely understand every limitation and all the regulations and duties applicable to arrests by private citizens as prescribed in Criminal Procedure Law Article 140. http://assembly.state.ny.us/leg/?cl=25&a=22

It is very important that one undertaking a Citizen's Arrest also have a thorough knowledge of the Laws which define arrestable offenses, since private citizens may only arrest factually "guilty" offenders, and may not arrest merely upon reasonable belief nor probable cause.
http://assembly.state.ny.us/leg/?cl=25&a=22

See NY RULES FOR OPERATION OF ALL TERRAIN VEHICLES
http://caselaw.lp.findlaw.com/nycodes/law128/art82.html

A violation of these Rules is an "offense" for purposes of authorizing a private citizen to arrest an ATV operator without a warrant. See, VTL sec 155 & PL 10.00(2)
"For purposes of arrest without a warrant, pursuant to article one hundred forty of the criminal procedure law, a traffic infraction shall be deemed an offense." VTL sec 155
http://assembly.state.ny.us/leg/?cl=128&a=3

" 'Offense' means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state....." PL 10.00 The term "offense" therefore means any felony, misdemeanor, violation, or traffic infraction, unless otherwise specified in the law defining the offense. Penal Law sec 10.00 (1-6). http://assembly.state.ny.us/leg/?cl=82&a=5

ATV riders who will ride on any "new trail" they hear about without even knowing the owner will usually resist arrest, and try to flee or run over the landowner: http://www.atvtime.com/steelriders/Features/Others/DoWhat.html

"Our educational system is failing. Our schools are producing students who are to quote from the conclusion of a 858 page report recently published by a distinguished blue ribbon Presidential Task Force on Educational Quality- "stupid." The drop in our national IQ has caused many problems, including ... in the field of crime. [W]e are producing incompetent criminals...." Dave Barry, (as appropriately published in the Troy Record) July 15, 2001.

In extremely backwards places like Rensselaer County, New York, where public education (paid for at landowners' expense) systematically fails to instruct the young about peoples' rights, liabilties and responsiblilities under the Law, many ATV-riders will resist arrests attempted even by Police Officers: "Unregistered ATV: 3:21 p.m., Brian Wescott, 17 [years old], 480 Second Street, [Troy, New York] allegedly became irate and uncooperative during a traffic [ATV-infraction] stop and struggled with police. He was also charged with no insurance, obstruction of government administration, and resisting arrest." Troy Record, Police Blotter May 8, 2001 http://www.zwire.com/site/news.cfm?newsid=1781261&BRD=1170&PAG=461&dept_id=7021&rfi=8

What happens in NY when the ATV operator who is engaged in an arrestable offense or is fleeing from the scene resists a lawful citizen's arrest?

Penal Law, sec. 35.30, titled "Justification; use of physical force in making an arrest or in preventing an escape", provides:

"4. A private person acting on his own account may use physical force, other than deadly physical force, upon another person when and to the extent that he reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he reasonably believes to have committed an offense [in his presence] and who in fact has committed such offense; and [after giving due notice of the grounds for the arrest] he may use deadly physical force for such purpose when he reasonably believes such to be necessary to:(a) Defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force."

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

When arresting offenders riding ATVs, it is important to be aware that the ATV can be used as a dangerous instrument against the person making the arrest.

In NY, forcible "conduct" such as "Menacing" (PL 120.14), "which would otherwise constitute an offense is justifiable and not criminal" when committed "in defense of himself or a third person, or in defense of premises, or in order to prevent larceny of or criminal mischief to property, or inorder to effect an arrest or prevent an escape from custody." Penal Law 35.10(6).

Penal Law s 120.14, titled "Menacing" prescribes:
"A person is guilty of menacing in the second degree when [without justification]:1. He or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm."
http://assembly.state.ny.us/leg/?cl=82&a=27

However, many states, including NY, while not authorizing the USE of Deadly Force in defense of possession of land (i.e., premises), nevertheless do provide that an occupant may use necessary non-deadly force (including "threatening" to use deadly force, i.e., "menacing"). For example, Arizona's statutes explicitly authorize landowners to "threaten to use deadly physical force" in defense of land. Arizona Revised Statutes 13-407.
http://www.azleg.state.az.us/ars/13/00407.htm

Similarly, New York statutes provide that a person "may USE any degree of physical force, other than deadly physical force, which he reasonably believes to be necessary for" the listed purposes e.g., defense of premises, persons, arrest.

NY Penal Law sec 10, Definition (11) provides: ""Deadly physical force" means physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury."
http://assembly.state.ny.us/leg/?cl=82&a=5

Menacing with an unloaded gun, or with a dangerous instrument, and even firing a warning shot AWAY FROM the trespasser, and "threatening to use" deadly force, etc. are not a "USE" of Deadly Physical Force. Therefore each such act would be lawful in NY when such a use of non-deadly force is necessary and lawful under article 35 of the NY Penal Law. See:
http://www.courts.state.me.us/01me91gl.pdf
People v. Davis, 72 N.Y. 2d 32, 530 N.Y.S.2d (1988).
PEOPLE v. CHRYSLER, 85 N.Y.2d 413, 649 N.E.2d 1162, 626 N.Y.S.2d 18 (1995) ((http://www.law.cornell.edu/ny/ctap/085_0413.htm)

NY Case in point:
"A Canajoharie, New York, car thief's efforts were put in park after a potential victim pressed a shotgun to the criminal's throat. Daniel J. Stetin foiled the crime after awaking for work and discovering his car already running outside. He grabbed a shotgun and went to investigate, while his wife grabbed the telephone and dialed 911. Confronted by an armed and angry Stetin, the crook rested quietly on the ground and waited for police to arrive. (The Sunday Gazette, Schenectady, NY, 5/21/95)"
http://www.objectivists.org.au/May09-1999/armed-citizen.95.htm

There was no apparent USE of "deadly physical force" here (unless the shotgun had a hair-trigger and/or the safety was OFF), only a lawful and apparently necessary and sufficient "threat" to use such deadly force. Note: If the man who owned the car stood in front of it, and if the thief had attempted to escape by driving over the car's owner, the car's owner would have had the right to prevent that escape involving vehicular assault, by using deadly physical force (i.e., shooting). This is because the law, in support of citizens who place themselves in positions of peril to arrest guilty offenders, provides that the private citizen "may use deadly physical force for such purpose [to effect an arrest or prevent an escape] when he reasonably believes such to be necessary to:(a) Defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force." There is no duty to retreat while performing a citizen's arrest. PL 35.10(6); 35.30(4).

For other interesting articles about purported citizen's arrest see:
http://www.canoe.ca/CNEWSLaw0107/24_atv-par.html
(ATV posse traps man, rescues girl)

http://www.prairielaw.com/articles/article.asp?channelId=8&articleId=1329

http://www.thesunlink.com/news/daily/march99/0316a1d.html

http://www.counterpunch.org/pipermail/counterpunch-list/2000-May/000341.html

http://www.villagevoice.com/issues/0024/ridgeway.php

See also, The "Rights of NY Landowners to Use Force (Display Guns) to Stop, Expel and Arrest Defiant Trespassers" at: www.billstclair.com/ferran