These laws and materials were reviewed and updated in September, 2016, and are posted for general reference only. This is raw, incomplete research data inviting further refinement and updates. We are not regularly monitoring legislation or appellate cases that might change and/or modify the text or affected of these laws, so verify original current sources before relying on what is posted here. If you find inaccuracies, or laws in other states, in please notify us so that we can post them.
AG Opinion 2013.012
Are process servers considered an officer of the court (not to be confused with court officers)? Q2a) If an appointed process server is considered an “officer of the court” and while performing duties are they granted a limited exemption or affirmative defense against criminal trespass (5-39-203) and criminal trespass on land located in unincorporated area (5-39-305)?
Penal Code § 602 Trespass
Except as provided in subdivisions (u), (v), and (x), and Section 602.8, every person who willfully commits a trespass by any of the following acts is guilty of a misdemeanor:
. . .
(n)Driving any vehicle, as defined in Section 670 of the Vehicle Code, upon real property belonging to, or lawfully occupied by, another and known not to be open to the general public, without the consent of the owner, the owner’s agent, or the person in lawful possession. This subdivision does not apply to any person described in Section 22350 of the Business and Professions Code who is making a lawful service of process, provided that upon exiting the vehicle, the person proceeds immediately to attempt the service of process, and leaves immediately upon completing the service of process or upon the request of the owner, the owner’s agent, or the person in lawful possession.
Penal Code § 602.8 Trespass
(a)Any person who without the written permission of the landowner, the owner’s agent, or the person in lawful possession of the land, willfully enters any lands under cultivation or enclosed by fence, belonging to, or occupied by, another, or who willfully enters upon uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along all exterior boundaries and at all roads and trails entering the lands, is guilty of a public offense.
. . .
(c)Subdivision (a) shall not apply to any of the following:
. . .
(2)Any person on the premises who is engaging in activities protected by the California or United States Constitution.
(3)Any person described in Section 22350 of the Business and Professions Code who is making a lawful service of process.
Legislative Analysis AB 1787
See related article discussing Criminal Trespass in California – Process Servers
Universal Citation: HI Rev Stat § 708-813 (2015)
- 708-813 Criminal trespass in the first degree. (1) A person commits the offense of criminal trespass in the first degree if:
(a) That person knowingly enters or remains unlawfully:
(i) In a dwelling; or
(ii) In or upon the premises of a hotel or apartment building;
(b) That person:
(i) Knowingly enters or remains unlawfully in or upon premises that are fenced or enclosed in a manner designed to exclude intruders; and
(ii) Is in possession of a firearm, as defined in section 134-1, at the time of the intrusion; or
(c) That person enters or remains unlawfully in or upon the premises of any public school as defined in section 302A-101, or any private school, after reasonable warning or request to leave by school authorities or a police officer; provided however, such warning or request to leave shall be unnecessary between 10:00 p.m. and 5:00 a.m.
(2) Subsection (1) shall not apply to a process server who enters or remains in or upon the land or premises of another, unless the land or premises are secured with a fence and locked gate, for the purpose of making a good faith attempt to perform their legal duties and to serve process upon any of the following:
(a) An owner or occupant of the land or premises;
(b) An agent of the owner or occupant of the land or premises; or
(c) A lessee of the land or premises.
(3) As used in this section, “process server” means any person authorized under the Hawaii rules of civil procedure, district court rules of civil procedure, Hawaii family court rules, or section 353C-10 to serve process.
(4) Criminal trespass in the first degree is a misdemeanor. [L 1972, c 9, pt of §1; am L 1974, c 55, §1; am L 1975, c 32, §1; am L 1981, c 177, §1; am L 1996, c 89, §18; am L 2000, c 200, §1; am L 2015, c 101, §2]
SUPPLEMENTAL COMMENTARY ON §§708-813 TO 708-815
Act 101, Session Laws 2015, amended §§708-813 and 708-814 to shield process servers performing their duties from prosecution under criminal trespass statutes when they enter premises that are not secured by a fence or a locked gate. The legislature found that process servers are an important part of the judicial process. Act 101 allowed process servers to enter or remain in or upon the premises of another for the purpose of making a good faith attempt to serve process upon certain individuals. Senate Standing Committee Report No. 1363, Conference Committee Report No. 22.
THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931
750.552 Trespass upon lands or premises of another; exception; violation; penalty; “process server” defined.
(1) Except as otherwise provided in subsection (2), a person shall not do any of the following:
(a) Enter the lands or premises of another without lawful authority after having been forbidden to do so by the owner or occupant or the agent of the owner or occupant.
(b) Remain without lawful authority on the land or premises of another after being notified to depart by the owner or occupant or the agent of the owner or occupant.
(c) Enter or remain without lawful authority on fenced or posted farm property of another person without the consent of the owner or his or her lessee or agent. A request to leave the premises is not a necessary element for a violation of this subdivision. This subdivision does not apply to a person who is in the process of attempting, by the most direct route, to contact the owner or his or her lessee or agent to request consent.
(2) Subsection (1) does not apply to a process server who is on the land or premises of another while in the process of attempting, by the most direct route, to serve process upon any of the following:
(a) An owner or occupant of the land or premises.
(b) An agent of the owner or occupant of the land or premises.
(c) A lessee of the land or premises.
(3) A person who violates subsection (1) is guilty of a misdemeanor punishable by imprisonment in the county jail for not more than 30 days or by a fine of not more than $250.00, or both.
(4) As used in this section, “process server” means a person authorized under the revised judicature act of 1961, 1961 PA 236, MCL 600.101 to 600.9947, or supreme court rule to serve process.
History: Add. 1951, Act 102, Imd. Eff. May 31, 1951 ;– Am. 2007, Act 167, Eff. Mar. 20, 2008 ;– Am. 2013, Act 230, Imd. Eff. Dec. 26, 2013
“Permission may be implied where the owner acquiesces in the known, customary use of property by the public.” Thone v. Nicholson 84 Mich. App. 538 (1978), 269 N.W.2d 665 (See also Alvin v. Simpson, 491 N.W.2d 604 (Mich. Ct. App. 1992) , acknowledging this as to residential property, there a back yard;
2014 MS H.B. 898 – Bill introduced in 2014 and died in committee
N.J.S.A. 2A:50-53. et seq, that allows for mortgage lenders to seek expedited mortgage foreclosures for residential properties that are determined to be vacant or abandoned. Those determinations are often done by process servers. In so doing, there is a risk that the person conducting those inquiries may be exposed to trespass allegations, especially when looking into a home that is actually occupied.
There is currently submitted Senate Bill 2545 that seeks toto amendN.J.S.A. 2A:50-53. et seq,to provide for planned communities to be able to appointed receivers of vacant or abandoned propertieswhere lenders fail to seek expedited foreclosures. This is supported by the Community Associations Institute (CAI-NJ), an organization whose members consist of planned communities in New Jersey.
As of 9/6/16, this bill has passed the Senate.
Butler v. Ratner, 662 N.Y.S.2d 69 (City Ct. 1997) – A process server’s entry onto the defendant’s property to serve the defendant with papers after being told not to enter the property constitutes a trespass under New York law.
Full case: http://caselaw.findlaw.com/nyc-court/1224114.html
Keesecker v. G.M. McKelvey Co., 47 N.E.2d 211 (Ohio 1943) (implied license as defense to trespass was a question for the jury because, “in this day and age it is a matter of general knowledge that deliverymen, tradespeople and others having business or prospective business with the occupants of a private dwelling, or being in quest of information, commonly call at the front door. In the present case the porch door was unlocked, there was no warning to stay out, a doorbell was located beside the inside door, and the deliveryman was of the honest belief that the package he carried was to be left at the Keesecker residence.”) Going onto someone’s porch to ring the doorbell and ask for directions, try to sell Girl Scout cookies, hand out religious or political literature, and the like is generally allowed, on the theory that such normal behavior is implicitly licensed by the property owner (unless the owner specifically says the contrary with regard to some uses, for instance by posting a “No Soliciting” sign).
Discussed in The Volokh Conspiracy post, SEIU Picketing on Someone’s Front Porch?
Gateway 2000, Inc. v. Limoges, 552 N.W.2d 591 (S.D. 1996) …[W]hen the sheriff “is operating in the same capacity as a private process server,” he “has no authority to threaten Gateway management or employees with a charge of ‘obstruction of justice, “ nor does he “have the authority to forcibly enter beyond the visitor entrance.”
Op. Tenn. Att’y Gen. No. 01-148 (2001)
Does the sheriff or civil process server have the right to enter upon private property to serve any legal writ or process?
Op. Tenn. Att’y Gen. No. 01-149 (2001) May a private business refuse access onto its property to a private process server or a sheriff who is attempting to serve civil papers? Yes
AG Opinion GA-0113
Re: Whether a refusal to permit a constable to enter the restricted area of a business in order to serve civil process constitutes an offense under section 38.16 of the Texas Penal Code.
No authority to enter.
Op. Va. Att’y Gen. No. 32 (1999) 99-056
Authority of private process servers acting pursuant to § 8.01-293(A) of the Code of Virginia.
Private process server is considered officer or sheriff for purpose of serving process; enters public area of business to serve process under authority of law. Entry into private offices of business area where there is justifiable expectation of privacy to serve process may constitute unreasonable search or seizure. In such case, process server would not be acting under authority of law and would be liable for trespass. Extent to which portion of business establishment constitutes private area is question of fact. Person acting jointly or in combination with other person(s) to resist or obstruct lawful service of process is guilty of misdemeanor violation. Private process server is not law-enforcement officer against whom any attempt to interfere with execution of service of process would constitute misdemeanor.
(1) A building involved in an offense under RCW 9A.52.070 was abandoned; or
(2) The premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or
(3) The actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him or her to enter or remain; or
(4) The actor was attempting to serve legal process which includes any document required or allowed to be served upon persons or property, by any statute, rule, ordinance, regulation, or court order, excluding delivery by the mails of the United States. This defense applies only if the actor did not enter into a private residence or other building not open to the public and the entry onto the premises was reasonable and necessary for service of the legal process.
Note: a legal defense, not an exemption