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*** UPDATED x1 *** The trespassing issue

Thursday, Sep 15, 2022 - Posted by Rich Miller

* From Chicago Tonight

Q: There are claims that the bill prevents police officers from forcibly removing a trespasser from one’s property. … Is that claim true or false?

Rep. Patrick Windhorst (R-Metropolis): Well, I think it’s at least partially true, if not completely true. That relates to a trespasser on property, not inside the residence, but on property. And it says that that person is not subject to arrest unless they are presenting a risk of the safety of an individual or the community. So if an individual is simply on property without authorization or trespass. The police are simply to cite and then leave. […]

Cook County Public Defender Sharone Mitchell: I think that Representative Windhorst is right that part of that legislation says that law enforcement should not arrest for the lowest level offenses. But the next line gives law enforcement the sole authority to make that decision. And it’s also important to note that that piece of legislation was actually taken from recommendations from a group of states attorneys, court system actors and prosecutors in a report that was released in April 2020. So that gives law enforcement the flexibility to actually make that decision themselves.

* This is from the April 2020 Illinois Supreme Court Commission on Pretrial Practices Final Report, mentioned by Mitchell, on the trespassing language

Law enforcement shall issue a citation in lieu of custodial arrest, upon proper identification, for those accused of Class B and C traffic and criminal misdemeanor offenses, or of petty and business offenses, who pose no obvious threat to the community or any person, or who have no obvious medical or mental health issues that pose a risk to their own safety. Those released on citation shall be scheduled into court within 21 days. Subsequent court reminder notification shall be provided via mail, electronically, text or telephone.

What ended up in the statute

(a-1) Law enforcement shall issue a citation in lieu of custodial arrest, upon proper identification, for those accused of traffic and Class B and C criminal misdemeanor offenses, or of petty and business offenses, who pose no obvious threat to the community or any person, or who have no obvious medical or mental health issues that pose a risk to 25 their own safety. Those released on citation shall be scheduled in to court within 21 days.

Mitchell says the statute gives law enforcement officers discretion to interpret what an “obvious threat” is. Somebody camped out on a person’s porch and won’t leave after being ordered to by the police could easily be declared a threat, in other words.

But even Democrats have told me they are looking for ways to tighten up the language in the fall veto session. We’ll see.

* As an example, Rep. Kam Buckner (D-Chicago) was on WGN Radio yesterday and said this about the SAFE-T Act

Whatever we have to change we will change. I want to again say that we have committed to making sure that this will make Illinois safe and also furthers justice in this state. We’ve got to get it right and it will take some tweaking over time. We’ve already tweaked some, we’ll continue to do that where it’s necessary.

* Anyway, back to the Illinois Supreme Court Commission on Pretrial Practices Final Report on this topic

Arrest is an essential and integral function of effective policing. However, the practice is far more intrusive to individual freedom, subjecting a person to potential pretrial detention or unnecessary conditions of pretrial release. Citation in lieu of arrest authorizes law enforcement to release a subject, in appropriate non-violent cases, with a date to appear in court, rather than being subjected to formalized arrest and booking procedures.

The American Bar Association and International Association of Chiefs of Police foster a policy favoring issuance of citations. “It should be the policy of every law enforcement agency to issue citations in lieu of arrest or continued custody to the maximum extent consistent with the effective enforcement of the law.” Nationwide, law enforcement departments utilize some form of citation in lieu of arrest. Approximately 87% of police agencies participate in this form of policing with 80% of these jurisdictions having ten (10) years or more experience using this arrest alternative.

Republican Sen. John Curran and Republican Rep. Dan Ugaste were on that commission, as was a representative of the Illinois Association Chiefs of Police and former US Attorney Rodger Heaton.

* I asked Jordan Abudayyeh at the governor’s office for comment…

Under the SAFE-T Act, law enforcement officers can continue to use their judgement to arrest a person that is a threat to the community.

The statute clearly states, “law enforcement shall issue a citation in lieu of custodial arrest, upon proper identification, for those accused of traffic and Class B and C criminal misdemeanor offenses, or of petty and business offenses, who pose no obvious threat to the community or any person, or who have no obvious medical or mental health issues that pose a risk to their own safety.”

If the law enforcement community needs more clarity regarding their ability to arrest people who are posing a threat to other people or themselves then our administration is happy to work with them and lawmakers to make that even more clear.

* The reason I asked for some clarification is because the trespassing issue has become a hot topic of discussion. Sen. Darren Bailey said this on Dan Proft’s WIND show last week

The simple offense of trespassing in your house, on your yard, in your business. The law enforcement can only stand there, by this SAFE-T Act and write a warning. That’s all that they can do. They cannot forcefully remove these people. So we’ve got a pretty dire situation on our hands

*** UPDATE *** With thanks to a commenter, this was issued last month by the Illinois Supreme Court Implementation Task Force

Law enforcement do have discretion to remove the person from the location of the alleged criminal activity, and then cite and release the person from another location.

So, all the people claiming that people can just camp out on somebody’s lawn, or move in to somebody else’s shed or cause a disturbance in a restaurant or whatever are wrong, according to the Supreme Court’s own implementation commission.

And if they go back? Well, they could easily be judged a threat at that point and arrested on the spot.

My problem with all this, however, is that proponents just don’t have the skills to point to simple things like this.

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35 Comments
  1. - 47th Ward - Thursday, Sep 15, 22 @ 2:51 pm:

    ===So we’ve got a pretty dire situation on our hands===

    Indeed we do. We have public officials who can’t read statutes and interpret them correctly. That’s kind of a big problem, don’t you think Senator?


  2. - Almost the Weekend - Thursday, Sep 15, 22 @ 2:56 pm:

    =Indeed we do. We have public officials who can’t read statutes and interpret them correctly. That’s kind of a big problem, don’t you think Senator?=

    The issue is how this is being marketed. This is just as bad as the Cook County Soda Tax. The sponsors of this legislation should have worked with a States Attorney in DuPage and a city or suburban police department. There is not a face to this legislation or voice, so it’s easy for the GOP to say this is all Kim and Lori because their unfavorables are so high.

    Just like the soda tax, the graduated income tax, the messaging was lost by the Dems. Good legislation isn’t just good because it’s good policy, it’s because it’s being sold and explained to the media and voters. Especially in this era of disinformation.


  3. - Hmmm - Thursday, Sep 15, 22 @ 3:05 pm:

    So if a person sits on the front lawn of someone else’s home holding a sign that states they are not a threat to anyone and takes no threatening action, that person cannot be removed. I wonder how Legislators would like that to happen at their home. No I’m not encouraging that behavior because I think it’s wrong. I certainly hope it doesn’t happen. But it sure sounds like it would only result in a citation not removal. People need to know this.


  4. - OneMan - Thursday, Sep 15, 22 @ 3:08 pm:

    == Under the SAFE-T Act, law enforcement officers can continue to use their judgment to arrest a person that is a threat to the community. ==

    I think this is a part of the act that is a political problem (as well as a general problem). One thing that people expect from the police is to remove unauthorized people from their property. So let us say I come home and find someone in my pool, I ask them to leave, but they, for whatever reason, want to keep swimming. I don’t know if they would be a ‘threat to the community. However, I want them out of my pool and would expect law enforcement when called to get them out of my pool and off my property.

    Let’s say I have a few acres someplace, and I go there and see someone camping on it (or trapping on it) not sure if they are a ‘threat to the community, but I would want them gone from my land and law enforcement to deal with removing them from the property.

    Unless you are going to define anyone who refuses to leave as a ‘threat to the community’ then whats the point of that language at all.

    This seems like an easy fix.

    I think the vast majority of the SAFE-T act is a great idea. I think this ‘threat to the community’ judgment call will end up being problematic.


  5. - Arsenal - Thursday, Sep 15, 22 @ 3:08 pm:

    ==Well, I think it’s at least partially true, if not completely true.==

    How wonderfully weasel-y.


  6. - rtov - Thursday, Sep 15, 22 @ 3:10 pm:

    Law enforcement will have the discretion to make a determination on who poses a threat and who should be arrested. While I agree that law enforcement should have more discretion on arrest decisions, this doesn’t seem to further the spirit of the Act. For instance, wasn’t one of the motivations behind the Safe-T Act the idea that law enforcement officers are inherently bias and prejudiced?


  7. - MoralMinority - Thursday, Sep 15, 22 @ 3:12 pm:

    Seems to me that anyone who is asked to leave private property and refuse to do so or comes back after being asked to stay away should be subject to arrest.


  8. - 47th Ward - Thursday, Sep 15, 22 @ 3:14 pm:

    Hmmm, try reading it slower this time. Especially the part about police having discretion. Let me know if you need help with any of the big words.


  9. - vern - Thursday, Sep 15, 22 @ 3:15 pm:

    ===The issue is how this is being marketed.===

    Political strategy aside, do you believe Republicans bear any responsibility for lying? “Era of disinformation” conveniently elides who creates disinformation. “The sponsors of this legislation should” conveniently elides the fact that the DuPage States Attorney has the power to work with sponsors and, always, to tell the truth.

    I’m absolutely sick of the assumption (on both sides of the aisle) that Republicans have no control of the words that come out of their own mouths. I’m also sick of the assumption that there’s some magic combination of words Democrats can use to prevent Republicans from just making things up. If they can’t stop themselves from lying, we definitely can’t stop them.


  10. - Mason born - Thursday, Sep 15, 22 @ 3:15 pm:

    It might help if LEO’s could escort the individual off the property and then issue the citation? That way further confrontations have a chance of being avoided. Just saying.


  11. - DuPage Saint - Thursday, Sep 15, 22 @ 3:16 pm:

    First of all it sounds like the officer has the discretion to take someone in but secondly to be given a citation they must have a proper I d. I would bet that is critical. Many might have outstanding warrants or invalid ID. And finally how many people have been arrested in the last year for trespassing alone. I bet it is always an ad on charge


  12. - Demoralized - Thursday, Sep 15, 22 @ 3:19 pm:

    I am so sick and tired of the lies being told by people like Bailey with regard to this law. And what is even more irritating is the ignorant people out there who just take everything they say at face value.


  13. - Rich Miller - Thursday, Sep 15, 22 @ 3:25 pm:

    ===It might help if LEO’s could escort the individual off the property===

    Does it say anywhere in that statute that they cannot?


  14. - The Opinions Bureau - Thursday, Sep 15, 22 @ 3:27 pm:

    Mason born, the Supreme Court implementation commission is interpreting the language to read that way.

    “● Law enforcement do have discretion to remove the person from the
    location of the alleged criminal activity, and then cite and release the
    person from another location”

    From the citation and release flowchart document available here:

    https://www.illinoiscourts.gov/courts/additional-resources/pretrial-implementation-task-force/#:~:text=The%20Illinois%20Supreme%20Court%20Pretrial,PFA)%20takes%20effect%20in%202023.


  15. - The Velvet Frog - Thursday, Sep 15, 22 @ 3:31 pm:

    So it sounds like Trespassing (like being on somebody’s lawn) would generally be a citation, not an arrest.

    But if the cops ask someone to get off private property and they refuse, isn’t that potentially another violation which at some point be cause for arrest? I’m no expert in law but it seems like refusing to stop committing a crime is worse than just doing it in the first place.


  16. - XonXoff - Thursday, Sep 15, 22 @ 3:32 pm:

    == They cannot forcefully remove these people. ==

    This is the part I’m awaiting solid clarification on.

    == But the next line gives law enforcement the sole authority to make that decision. ==

    That’s the reason I’m still waiting.

    Why? I know several cops pretty well (not all in IL). Of them, I’ll estimate 70% are relatively vocal MAGA supporters. Of that 70%, on a bad day, I’d guess 50% might want to throw their hands up in this situation, depending on their perception of the property owner, the trespasser, their caps, and the officers exposure after this situation.

    They need to shore this up or it’ll be a political response in some cases.


  17. - Rich Miller - Thursday, Sep 15, 22 @ 3:33 pm:

    ===refusing to stop committing a crime is worse than just doing it in the first place.===

    Yes, and that’s why they can remove them from the property and then cite them.


  18. - MisterJayEm - Thursday, Sep 15, 22 @ 3:33 pm:

    “So if a person sits on the front lawn of someone else’s home holding a sign that states they are not a threat to anyone and takes no threatening action, that person cannot be removed.”

    Are you lost?

    Did you get separated from a group of third-graders?

    What’s your teacher’s name?

    – MrJM


  19. - MyTwoCents - Thursday, Sep 15, 22 @ 3:41 pm:

    Darren Bailey wants to be the governor of one of the largest states in the US and doesn’t know the difference between a warning and a citation? Either he’s intentionally pedaling a falsehood or he’s that ignorant, either one of which is the daily example of why he’s completely unqualified to be governor.


  20. - OneMan - Thursday, Sep 15, 22 @ 3:51 pm:

    If someone is on my property and refuses to leave, will they be removed by law enforcement if I request it?

    That’s the question in a nutshell. If the person gets a ticket or is taken away in a squad car isn’t nearly as big of an issue.

    If the answer to that question is yes, I would suggest the Democrats start working on their messaging for that because I think voters are not going to be as comfortable with the answer ‘It depends.

    Getting the person off my property solves my problem.


  21. - Anon221 - Thursday, Sep 15, 22 @ 3:52 pm:

    Law enforcement officers are to enforce the law. I am not a law enforcement officer. If someone decides to intentionally commit criminal trespass, it is not within my authority to escort them from the premises, and it may well be dangerous to try and attempt to do so.

    From FindLaw for Illinois: ” Criminal trespass to real property occurs when you:

    Knowingly enter a building or remain there without permission

    Enter an individual’s property after already receiving notice that entry is forbidden

    Remain on an individual’s property after being ordered to leave

    Use false documents to get permission from the owner to enter or remain in a building

    Enter land being used or capable of being used for agricultural purposes or an orchard in or on a motor vehicle and remain on the land after being given prior notice that entry is forbidden

    Criminal trespass to a residence occurs when you:

    Knowingly enter/remain within any residence where an individual resides.

    Knowingly enter/remain within the residence of another and you know or have reason to know that people are present.”
    https://www.findlaw.com/state/illinois-law/illinois-criminal-trespass-laws.html

    Law enforcement may not need to arrest the person, but I do expect them to arrive within a reasonable amount of time if I call 911 to report a potential criminal trespass. It’s not up to me to make the call on whether the response should be a citation or arrest. And it’s not up to me to personally escort the trespasser off my property. I’ve only heard sheriffs and police chiefs ginning this up. Haven’t heard any grousing from IDNR Conservation Officers, and they take criminal trespass very seriously… at least in this neck of the woods.


  22. - BCOSEC - Thursday, Sep 15, 22 @ 3:54 pm:

    Rich. Don’t get your info on the PFA from the political types or social media. Go directly to the Implementation Task Force. They are the ones who are the experts and have been studying this since even before the PFA was signed into law. Also the least biased by far.


  23. - someonehastosayit - Thursday, Sep 15, 22 @ 3:57 pm:

    ===Either he’s intentionally pedaling a falsehood or he’s that ignorant===
    Both?


  24. - Mason born - Thursday, Sep 15, 22 @ 4:03 pm:

    -the Opinions Bureau-

    Thank you I did not know that. Having called a sheriff for a trespasser I cared less about whether he slept in jail so much as that he left.


  25. - twowaystreet - Thursday, Sep 15, 22 @ 4:15 pm:

    Five or six years ago, prior to Kim Foxx or Lori Lightfoot or JB Pritzker, - you know, “the good ole days” when Rauner was Governor, Rahm was building out the river front and Foxx was still working for Preckwinkle - we had an issue with a trespasser, a drunk guy that thought our house was his.

    After repeatedly telling the guy he had the wrong house we called the police. After an hour, no one had shown up from CPD but the guy had also seemingly left because there was no more yelling out front or him banging on our windows from the neighbors alley.

    I go to take the trash out and find the guy hung up on our fence, guessing he slipped when he tried to jump the fence from our neighbors yard. The spikes on the top went straight threw one of his biceps. He was barely conscious at that point so we called 911 to get him medical help and they finally showed up with an ambulance.

    Point being, if the cops don’t doing anything about trespassing it has nothing to do with the new law or the current administrations. In my experience, it has been a very low priority for police for many years now.


  26. - The Velvet Frog - Thursday, Sep 15, 22 @ 4:18 pm:

    “this bill’s language is a degradation of private property rights”

    Or you’re buying into biased misinterpretation of the law. It’s going into effect so I guess we’ll see if the police handle trespassers any different than they did previously. I suspect it was rare for them to be arrested before and will continue to be that way.


  27. - lowdrag - Thursday, Sep 15, 22 @ 4:24 pm:

    Just throwing it out there. So now we have created even more nonsense for law enforcement to deal with. How many calls to one location will they have to deal with?


  28. - Norseman - Thursday, Sep 15, 22 @ 4:26 pm:

    Clarification would seem to be in order. But the severity of the issue is being blown way out of proportion for political purposes. I’ve been threatened, burglarized and had someone alter correspondence from me for fraudulent purposes. I’ve never had any issues with a trespasser, nor have I heard of any from family and friends.


  29. - The Velvet Frog - Thursday, Sep 15, 22 @ 4:28 pm:

    Lowdrag, you really think cops arrest everyone who trespasses on someone’s lawn? They tell the person to get off and potentially cite them. And if the person refuses or leaves and then comes back then the cops have more to deal with. I guess you need to be specific about what “more nonsense” is exactly.


  30. - The Velvet Frog - Thursday, Sep 15, 22 @ 4:32 pm:

    All this fuss is about Get Off My Lawn. Literally.


  31. - 47th Ward - Thursday, Sep 15, 22 @ 4:41 pm:

    Some white people call 911 the moment they see a black or brown man where they think they should not be. The police arrive and sometimes there is a difficult encounter. Sometimes they are trespassing, sometimes black or brown men are doing something worse, but too often innocent young black and brown men get their first arrest recorded for simply being in the wrong place while also being black and brown.

    We need to come to terms with this problem we have in our society. This SAFE-T act was an attempt to do something to improve our system of criminal Justice. But change is hard and some people are too afraid to try to move a step or two closer to a more just society.

    But now I really want to camping on Darren Bailey’s farm since there is nothing he or the police can do about it. And since I’m white, something tells me he wouldn’t feel a need to call the cops on me for trespassing.


  32. - Blue Dog - Thursday, Sep 15, 22 @ 9:35 pm:

    Just saying. If I tell you to leave my property. You have about one minute,


  33. - LLG - Friday, Sep 16, 22 @ 9:08 am:

    The problem with a citation in lieu of arrest that avoids those formalized arrest and booking procedures also avoids the fingerprinting process, which both confirms the identity of the subject AND puts the arrest on the subject’s rap sheet. No booking, no fingerprints, no criminal history records.


  34. - The Velvet Frog - Friday, Sep 16, 22 @ 11:06 am:

    In the case of trespassing, are they arresting people now? Hard to imagine that they are booking and fingerprinting everyone who gets the cops called for being on someone else’s lawn.


  35. - Thomas Paine - Friday, Sep 16, 22 @ 12:45 pm:

    === My problem with all this, however, is that proponents just don’t have the skills to point to simple things like this. ===

    Rich: I think all you have to do is go back to the Chicago Tonight clip where the host asked “Is that true or false?” and ask youself why Sharone Mitchell didn’t just say “the claim police cannot remove trespassers is a lie, and anyone claiming that is a liar.”


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