Bad Cop, No Donut! NY State Police support tresspassing ATVers (long)

The following Complaint outlines how the NY State Police are
systematically dis-arming New York Landowners. The State Police in
Rensselaer County have adopted a policy of arresting any landowner who
merely carries, holds, or "displays" a gun on his own land while in the
presence of a defiant trespasser:
----- Original Message ----- From: Mark Ferran To:
email-address-deleted Sent: Thursday, May 01, 2003 5:19 PM
Subject: PUBLIC COMPLAINT: NY Troopers Inciting Defiant Trespass
PUBLIC COMPLAINT, on Behalf of All NY Land-owners:
To the Internal Affairs Bureau of the New York State Police:
From: Mark R. Ferran BSEE scl JD mcl; land-owner
Date: May 1, 2003:
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."
http://assembly.state.ny.us/leg/?cl=‚&a=
Troopers in Rensselaer County New York seem to think that these general
rules do not apply to land-owners. In Rensselaer County, "the State
Police ... make [the land-owner who confronts a trespasser] feel like
the criminal instead of the victim."
http://www.troyrecord.com/site/news.cfm?newsid='21020&BRD=70&PAG=F
1&dept_id=p22&rfi==8
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 ATV Trespass Problem www.billstclair.com/ferran
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='21020&BRD=70&PAG=F
1&dept_id=p22&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."
http://www.cannabisnews.com/news/thread5944.shtml "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
http://www.nypress.com/15/33/news&columns/feature.cfm
http://www.trcmaine.org/news/02/06/po-drugs.htm "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=Y37
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=8&a=‚
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
"On July 29, police officer Chad Marks was struck by an ATV while on
patrol. [T]here has been damage caused by ATV's to village property,
including trees with shallow root systems and creeks and waterways that
the ATV's run through." http://www.the-daily-
record.com/past_issues/08_aug/010820dr1.html
"Man on ATV shot after running over officer" (in Florida)
http://www.polkonline.com/stories/070600/sta_man-shot.shtml (AP
7/06/2000)
(Landowner run over by 4-wheeler)
http://www.thesunlink.com/news/2000/april/0405code.html
(A 19-year-old man led security on an ATV chase ...on private
property.) http://www.poconorecord.com/1999/local/exd42284.htm
(Blown engine ends ATV chase)
http://www.pacentral.com/lsentinel/news_01302.htm
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.
State v. Miller, 398 S.E.2d 547, 550 (Ga. 1990).
http://www.state.wv.us/wvsca/docs%5Cspring96%5C23050.htm
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=‚&a=
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=ˆ794&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=
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Don't f**k with the human race!' --attributed to General Nikolai Nikolai at a galactic summit
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