Friday, August 1, 2014
FAIRFIELD-SUISUN, CALIFORNIA
99 CENTS

What should a police officer do when responding to a call about a squatter?

By
From page C2 | August 17, 2013 |

Q: I read with great interest your column several weeks ago in which you told the story of the poor lady who was trying to get illegal squatters out of her house and how the police wouldn’t do anything about it. I then read the story the next week that the newspaper did when the lady had to pay money to the squatters in order to get them out in a deal that the police actually brokered. I’m a retired police officer. I live in Solano County but not in Fairfield. I’m having a lot of trouble believing that the police would not remove someone who had broken into a house. I don’t ever remember the issue coming up when I was on the job. Sometimes landlords would ask us to remove a tenant who wasn’t paying and of course we couldn’t do that. But I can’t ever remember going to arrest a burglar only to leave him in the property when he tells me he lives there. Frankly, I’m discouraged by the whole thing. So my question is; if I was a police officer at the scene under those circumstances, what do you think I should do and under what authority?

A:  Judging by the online comments, letters to the editor, and something like 50 emails I’ve received regarding my column and Susan Winlow’s great follow-up article, you are not alone. Judging from the response, this is becoming a growing problem. And why not? For the perpetrators it’s becoming a cash cow and they’re systematically getting better at it.

For those who have been on vacation, here’s the short version of what happened.

Lady goes to her condominium that was vacant and boarded up. She finds that people have broken in and she calls the police.

The police show up and knock on the door. The guy inside says he’s renting the house, though he offers no proof, no lease and provides no names of the landlord. There are visible signs that the property has been broken into.

The police officer tells the lady, “Nothing I can do. You’ll just have to file for an eviction.” Later, the lady has to pay the burglar $500 cash to bribe him to leave, all while a police officer stands by and Susan Winlow from the DR is there to record the whole scene.

In the weeks that have followed the column and subsequent article, I have had the occasion to discuss this situation with officers from several different departments as well as Realtors, property managers and others. Doing so has helped me gain some insight and perspective on the problem that I’d like to share.

First, keep in mind that this type of squatter, i.e. the type that moves in and treats the residence as their own, is a pretty new issue.

A Vacaville Police officer shared with me just how often officers get called to a residence where a landlord makes a demand that the tenant be hauled out for failing to pay the rent. Frankly, I had no idea this happened with such frequency.

You, along with officers currently in the field, obviously did the right thing by not removing a tenant who wasn’t paying their rent.

There is a relatively simple and fast method for a landlord to get the legal issues before a judge who will make a decision based upon well-worn landlord/tenant laws. Each side gets their day in court under civil law.

If the landlord prevails, the tenant gets removed from the property.

In light of the frequency of the occurrence, the officer’s advice that, “you need to file for an eviction,” makes sense.

Upon reflection, I’ve come to realize that the officer at the scene of the event that started this whole thing undoubtedly simply saw it as yet another tenant/landlord issue. Since the easiest way to preserve the peace was for each side to go their own separate way, the advice makes even more sense.

However, in this case and others like it, it just turned out to be the wrong advice.

Someone who breaks into a house is not a tenant. And the normal lawsuit remedies available to an owner with a tenant cannot be used. You cannot file for eviction of a trespasser.

You can file a full superior court lawsuit, which will take a minimum of one year to resolve and potentially tens of thousands of dollars.

But the landlord/tenant remedies are not available.

The duty of the police is to enforce criminal, or “penal,” law. Civil and penal law have very little to do with each other.  They are two entirely different systems that seek entirely different things.

Civil law is designed to compensate someone who has been hurt, financially or otherwise, by someone else.

In criminal law, all of society is deemed to be the victim of the illegal act.  That’s why when the District Attorney brings a criminal charge against someone it’s entitled, “The People of the State of California v. John Doe.

Police generally needn’t concern themselves with civil law. That’s something for the parties, their attorneys and the courts to deal with.

On the other hand, the legal system depends upon police officers enforcing the penal code.

Again, this is a new problem which I believe calls for new training and policies in the police department.

So here’s the simple explanation of the law upon which a responding officer can hang his or her handcuffs.

Penal Code 602 is the trespass section. All that is required is that someone willfully entered a property they knew wasn’t theirs with the intent to interfere with the true owner’s rights.

Pretty much a no-brainer in this case.

A basic understanding of criminal trespass law, and the will to enforce it, is all an officer needs to make an arrest.

But even setting aside 602; Penal Code 594 is the vandalism section of the law. All it requires is that someone deface another’s property. Take for example breaking a window, jimmying a door jamb or lock, damaging a wall in the interior, or writing graffiti. Any variety of these is enough for an officer to make an arrest and deliver the property to its rightful occupant.

These are just two quick and dirty Penal Code sections, either one of which would have been enough for the police officer to make an arrest.

Nobody, criminal attorneys and judges included, knows every section in the Penal Code. Like most of us, we learn what we need to know to allow us to do what we do. Chances are good that the responding officer had never run up against this problem before. But it’s fair to project that he will again.

If you own a rental property, own a property that is going to be left empty for a period of time, or are a Realtor, you’ll want to keep these Penal Code sections handy.

I’m becoming more hopeful that the Fairfield Police Department will work with Donald du Bain, our District Attorney, to develop training and procedures for officers in the field to follow when confronted with this situation.

Tim Jones is a real estate attorney in Fairfield. If you have any questions you would like answered in this column you can contact him atSolanoScene@TJones-Law.com.

LEAVE A COMMENT

Discussion | 16 comments

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  • JoeAugust 17, 2013 - 6:37 am

    Sounds like; Fairfield PD = Epic Fail

    Reply | Report abusive comment
  • Not so simpleAugust 17, 2013 - 7:21 am

    Not so simple Tim. Police cannot arrest for 594 or 602 without witnessing the act. Those are misdemeanors. And what about the tenant that has a rental agreement or utilities turned on in there name. What does a fake lease agreement look like? Do you know? How about the police side with the landlord every time. Hopefully somebody doesn't get dragged out of a home they have or think they have a right to be in. Imagine how much money the taxpayers will fork out when a police officer arrests a tenant inside his residence for a crime he or she never committed.

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  • Mr. PracticalAugust 17, 2013 - 7:36 am

    His last paragraph addresses that.

    Reply | Report abusive comment
  • JoeAugust 17, 2013 - 9:29 am

    "Not so simple" eh. Property owner (or rep) shows up with proof of ownership & calls FPD. PD confronts the "renter" who "offers no proof, no lease and provides no names of the landlord". Is Fairfield now hiring blind cops? Is that why "Police cannot arrest for 594 or 602 without witnessing the act"?

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  • The MisterAugust 17, 2013 - 10:11 am

    If the squatter is in the house when the police arrive, then by definition the Police are witnessing the trespass crime of 602PC. As such, and arrest can be made. Failing that, the property owner, who is also witnessing the crime of trespassing, can sign a citizens arrest. If the squatter then refuses to leave, the Police can take the squatter into custody and to jail because the crime was likely to continue. This is not esoteric stuff... Police deal with 594s and 602s on a weekly if not daily basis. If the officer doesn't deal with a squatter in a way that get's him or her out of the house, the reason likely comes from direction internal to the Police department or City.

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  • StreetwiseAugust 17, 2013 - 10:32 am

    So the blame falls back on Tibbets?

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  • Solano Business IncubatorAugust 17, 2013 - 11:10 am

    Unbelievable..!

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  • rlw895August 17, 2013 - 11:16 am

    A little sensible direction from the City Council, and this issue will be history. Call them.

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  • FredAugust 17, 2013 - 2:11 pm

    "Sensible direction from the City Council"?...ROTFLMAO...Ur killin me Rick...LOL...

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  • streetAugust 17, 2013 - 10:00 pm

    One false arrest can cost the taxpayers hundreds of thousands of dollars. The penal code is basic; for current case law, the annotated case law takes precedents. This area of enforcement is a lot harder than those not in law enforcement think. It ain't that easy folks.

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  • rlw895August 17, 2013 - 11:20 pm

    So? Charlie Long used to have one direction to staff: "Use your best judgment at all times." If you do that we will have your back. A city staff that takes no risks is not earning its pay.

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  • Mr. PracticalAugust 18, 2013 - 6:21 am

    If it were me and I hadn't run into this situation before, or had not had the specific training and direction on how to proceed, my best judgment would be to call into a supervisor or walk away from the situation until I had the info needed to increase the odds of a successful outcome.

    Reply | Report abusive comment
  • FredAugust 18, 2013 - 9:20 am

    @street...Or is it just a case of FPD taking the easy way out. A case of show & go. A common practice from what I've seen with FPD. With FPD refusal to do anything, if I was the property owner I would have insisted on an arrest. With FPD refusal to do anything I would be checking to see if FPD could be held liable for all costs after the fact even if it meant Small Claims Court just for the $500...

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  • CD BrooksAugust 18, 2013 - 9:45 am

    Hey Fred! Yeah, that whole "witnessing the act" thing is annoying. So now I understand. The police do as little as they want/ have to while drawing a very nice salary and benefits. Then the brass tells us what a great job they are doing. Don’t get me wrong, I support FPD, they deal with the worst of the worst I get that, and it seems they are keeping major crime to a minimum. But I’d really like to hear less and see more. Especially on the woeful traffic enforcement.

    Reply | Report abusive comment
  • FredAugust 18, 2013 - 2:00 pm

    I wouldn't say "police do as little as they want", I would say "police do as little as they can". Like in the Orchid St area & the rash of break-ins. You never saw a patrol until the shootings despite two or three break-ins a week sometimes. I understand that cops "deal with the worst of the worst". I’ve been in Fairfield way too long. Remember when Fairfield High was a Sugar Beet field. We're definitely not in Kansas anymore. Fairfield has never had as many sworn officers as they do now & these officers ARE paid highly for their service so is it wrong to expect the most out of them? Some would say we are not getting that. I would like to see more attention to ALL crimes including traffic violations. Maybe now that FPD has those new BMW’s we will see more attention to traffic violations. @FPD…Thanks for the Robo-Cop (sign board)…I actually like that. Keeps the baddies thinkin. Not sure you are backing the message, but there is always hope…

    Reply | Report abusive comment
  • Eric H.February 17, 2014 - 6:56 pm

    I know this article is 6 months old, but I found it while researching this very issue - because I am a police officer for a Bay Area agency, and have repeatedly come across these scenarios. Unfortunately, as someone else pointed out, it is not as clear cut as those outside law enforcement think. In every squatter situation I've had to deal with, the suspects state they have a lease. Sometimes they show one, most of the time they do not. BUT that doesn't matter because a a verbal month-to-month lease is just as valid as a written one - when it is legal. The problem is that the responding officers have no way to prove whether or not the suspect has a phony lease. In addition, it is not unheard of that legitimate citizens have been duped into unknowingly signing (and paying first, last, deposits, etc.) for phony leases. Usually, as long as the officer has been a cop for more than six months, he/she can tell the suspects from the righteous citizens, but there is a BIG difference between the officer knowing which is which, and the officer being able to prove it to the extent that would allow him/her to physically remove the suspect. The police can't take actions on "hunches" or "gut instinct", we have to be able to articulate specific FACTS if we don't want to be arrested/sued/terminated. I've been a cop for 20 years, and the days of the department and/or city "having your back" when you make the best decision with the information available at the time is long gone.

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