Before a police officer or other municipal official tries to help in a land-lord or roommate possession fight, he or she needs to know the difference between a valid arrest for criminal trespass and an unconstitutional eviction of a person for refusing to leave a property where that person has some right to remain. The courts have broadened the protections of persons with even slim rights in property and now require a civil lawsuit to be brought under the forcible entry and detainer statute¹ to evict the "roommate from hell."

Many times, in today's world, a municipality is called upon to resolve disputes between individuals growing out of the vast variety of modern living arrangements. These disputes sometimes come to elected officials or managers and administrators who are asked to provide police assistance. Often the problem is presented directly to the police department.

Surprisingly, Illinois law provides that a peaceful person with an arguable claim to being an occupant or resident of a premises cannot be thrown off of the property or be arrested merely on the complaint of the owner or other occupant of the premises. For a police officer to do so could subject that officer, and perhaps his or her community, to a lawsuit for false arrest under state law and perhaps a federal civil rights lawsuit as well.

Below are several fact patterns which a police officer in any municipality could face on a routine basis. Understanding the legal rights of the parties will assist your police department in understanding the difference between the crime of criminal trespass where an arrest can be made, and an eviction, where the courts and not the police have the final say.

Scenario #1:
John and Lisa live together. The lease is only in Lisa's name and John has lived with Lisa for six months. John pays one-half of the rent and one-half of the utilities but is not a party to the lease. An argument begins and police respond to the scene. Lisa wants John removed immediately due to their not getting along. John says "No, I pay one-half of the rent."

Scenario #2:
Brian and Tom live together. The lease is only in Brian's name. Tom does not have a job and Brian pays all the bills. Brian and Tom have a quarrel and Brian wants Tom removed immediately. Tom does not want to leave and Brian states that he will sign a complaint for trespass.

Scenario #3:
Karen and Hunter live together in Karen's single-family residence. Karen owns the home. Hunter has lived with Karen for two months and has placed some furniture and appliances in the home to assist in the furnishing of the home. Karen and Hunter had a heated fight after Karen discovered Hunter was cheating on her. Hunter stated that he would not leave and Karen wants him removed.

Scenario #4:
Mary and Al have been dating for several months. Mary lives in an apartment with the lease only in her name. Al lives in an apartment in a nearby building. Al spends many weekend evenings at Mary's apartment. Al and Mary have a domestic dispute early Sunday morning. Al is asked to leave by Mary but refuses to do so. The police are called by Mary.

In each of these scenarios the police are called to help resolve a domestic dispute and are asked by the sole leaseholder or owner of the premises to have the other person removed from the premises and arrested. The sole leaseholder and owner is willing to sign a complaint for criminal trespass. Can the officer lawfully arrest these individuals for criminal trespass?

Under Illinois law, criminal trespass to real property is defined as follows:

§ 19-4. Criminal trespass to residence, (a) A person commits the offense of criminal trespass to a residence when, without authority, he knowingly

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enters or remains within any residence, including a house trailer. For purposes of this Section, in the case of a multi-unit residential building or complex, "residence" shall only include the portion of the building or complex which is the actual dwelling place of any person and shall not include such places as common recreational areas or lobbies.²

§ 21-3. Criminal trespass to real property, (a) Whoever enters upon the land or a building, other than a residence, or any part thereof of another, after receiving, prior to such entry, notice from the owner or occupant that such entry is forbidden, or remains upon the land or in a building, other than a residence, of another after receiving notice from the owner or occupant to depart, commits a Class C misdemeanor.³

Illinois law provides that where, at the request of the owner, an individual refuses to leave an apartment or house and reasonably claims to have a right to occupy some or all of the premises, that individual cannot be arrested for criminal trespass. This is true even where the owner provides other competing documents which show that he or she seems to have the right to exclusive possession or ownership of the property.

Illinois trespass statutes must be compared with the Illinois Forcible Entry and Detainer Statute which prohibits the seizing or taking of land by force. That statute provides:

§ 9-101. Forcible entry prohibited. No person shall make an entry into lands or tenements except in cases where entry is allowed by law, and in such cases he or she shall not enter with force, but in a peaceable manner.⁴

This statute prohibits the seizing of real property by force even by a law enforcement officer. It allows for the entry and regaining of real property in only a peaceable manner as provided under the statute. The concept of a "peaceable manner" means with a court order entered in a case where the person to be evicted had an opportunity to appear and argue his or her case. In this context the "seizing of real property" not only means the case of a landlord with a shotgun but also the actions of a disappointed and angry domestic partner or roommate. The forcible entry and detainer statute is based upon the long-established public policy that violence and even bloodshed could result from individuals using force and violence rather than the action of the sheriff under an eviction order to regain possession of real property even if possession is rightfully theirs.⁵

Without that eviction order, police officers cannot lawfully provide assistance even if it is only in the form of acting as a guard while watching an owner evict a tenant, roommate or other person with a claim to possession. Nor can the police arrest the individual who refuses to leave for criminal trespass on a complaint signed by another claiming the exclusive right to possession.

In the absence of factors which will be discussed later, a police officer must know that he or she does not have the right to make a legal determination as to who has a right to possess real property. That decision can only be made by a judge. By assisting someone in this manner, the officer could be sued for common law false arrest and for an illegal seizure under the Fourth Amendment of the U.S. Constitution.⁶

The facts of one case will help explain the difference. In People v. Evans⁷, a woman advertised for a housemate to live in her home for rent. The housemate paid a security deposit, but refused to sign a lease. After two weeks and continuous demands by the owner to have the housemate sign a lease, the owner asked the housemate to leave. The housemate refused and the police were called. When the officers arrived and questioned the housemate why she refused to leave, she did not answer or provide any information. The housemate was arrested and the homeowner signed a complaint for criminal trespass. The trial court found the defendant guilty.

The Appellate Court, however, held that the individual who had moved into a house as a housemate,

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paid a security deposit and was asked to sign a lease by the owner, but refused to do so, could not be charged with criminal trespass. The court held that the sole remedy for determining a right of possession is found in the Forcible Entry and Detainer statute. The court went on to hold that criminal trespass is inappropriate where the person being arrested has or had any credible argument claiming to have a right of possession to the real property. In effect, the court said that the criminal justice system may not be used as a mechanism for circumventing the civil process of a Forcible Entry and Detainer action.

A similar conclusion was reached in the case of City of Quincy v. Daniels.⁸ There a mother had allowed her son to remain on the premises for which she had a lease. Despite the fact that the mother vacated the premises, the son remained with the permission of his mother over the objection of the owner of the premises. The court held that it was inappropriate for the city, even under its local home-rule ordinance, to charge the defendant with criminal trespass. The court held that criminal trespass cannot be used to settle a dispute over the right of possession of land.

In both Evans and Daniels, the criminal defendants were occupants of the premises from which they were arrested for criminal trespass. An occupant of a premises cannot be charged with criminal trespass and any claim of right for possession can only be heard under the Forcible Entry and Detainer statute in a civil, not a criminal court. Therefore, if an individual is an occupant and claims a right to possession to the premises, or a part of a premises for which he or she demonstrates evidence, i.e., a significant amount of clothes in closets or drawers, furniture, rent receipts, mortgage payments, etc., he or she cannot be arrested for criminal trespass to land or to residence.

One may ask if the law has lost all sense of reality. It has not, for if this unwanted live-in friend or roommate is abusive or begins destroying the apartment or home another set of legal rules apply. In that case, the law allows a police officer to arrest that individual for any other type of offenses such as disorderly conduct, or any of the criminal offenses that may bring the police to the scene. Certainly, where the disputes involve more than just a question of possession of property, but also involve threats or acts of personal harm, the officer can look to other parts of the criminal code to control the situation. Once released from arrest on those other grounds, that individual still has the right to return to the premises unless there is some court order preventing his or her right to return, such as an order of protection or an injunction. The police are free to inform the owner of the premises of the existence of these other remedies and can testify in court in support of this relief.

Let us return to the four beginning scenarios. In the first three cases, none of the individuals could be arrested for criminal trespass. In scenario #1 John paid half the rent and paid half the utilities and clearly was living in and occupying the unit. In scenario #2 Brian and Tom lived together and even though Tom's name is not on the lease and he pays no bills, he has been occupying the unit under an agreement "with Brian." For Brian to have Tom removed he must file his own civil action. In scenario #3 Hunter also has lived in the premises by placing furniture and appliances in the home and has a possessory claim to part of the home. If Hunter were to state to the officer that he did not have any interest in residing in the residence, then he might be charged with criminal trespass. If however, he does claim a right to be on the premises and demonstrates some evidence of this claim, the right of possession would need to be disposed of in a civil action and not a criminal arrest.

In scenario #4, Al was not an occupant or resident of the premises, nor was he in possession of all or part of the premises. He was merely a temporary guest who has been requested to leave the premises by an owner or occupant. If he failed to leave he could be arrested for criminal trespass.⁹

The potential liability to an officer and the municipality arises out of a claim for false arrest. That claim can be made in two contexts. Under state tort law, the officer and the municipality could be liable for false arrest if the arrest was made without probable cause and done with a deliberate intent to cause harm.¹⁰ In a federal civil rights action, the officer could be held liable if the arrest ("seizure") was not reasonable under the Fourth Amendment protection against unlawful search and seizure. The municipality might also be liable if it could be shown that this practice was an expression of municipal policy or that the officer had not been properly trained.

In Soldal v. Cook County, Illinois¹¹, the U.S. Supreme Court held that Cook County deputy sheriffs could be held liable for an unreasonable seizure when they stood by to prevent violence when an owner of a mobile home park removed a trailer without an eviction order. The deputy sheriffs specifically declined to

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arrest tor criminal trespass on the basis that the matter was between the two parties and they were there simply to keep the peace. Nevertheless, the Supreme Court held this to be an unlawful seizure because the sheriffs knew the park owner did not have an eviction notice and did nothing to prevent the illegal eviction.

Recently, however, the Seventh Circuit has ruled in Gordon v. Degelmann¹² that an arrest for criminal trespass which may be in violation of the Forcible Detainer Act does not rise to a Federal Constitutional Fourth Amendment Violation, so long as the officer has probable cause to make an arrest. In that case the plaintiff claimed an ownership interest but had no documents or evidence to support that claim. The court held that because the officer was not provided any information to support the plaintiff's claim of ownership, the office had reasonable grounds, i.e., probable cause to arrest under the Fourth Amendment for criminal trespass. The court system will protect police if they make reasonable judgment calls based on the facts presented. Where reasonable evidence of a right to remain on the property is ignored by officials, liability will likely result.

Both for public policy reasons and in order to prevent costly litigation it is important for police departments to train their officers to look and ask for details surrounding any dispute over possession. Elected or appointed officials who may set policy which governs these officers' actions must also be aware of these rules. Questions must be asked such as (1) whose names are on the lease or title, (2) how long the parties have lived together, (3) whose possessions are on the premises, (4) are there any pending court proceedings, (5) are there any other documents that relate to these parties' claims of possessions (letters, utility bills, driver's license, etc.). The need to ask these questions and to evaluate the facts may at times make this a tricky area of the law. With a little help from a municipal attorney or state's attorney, you can both enforce it and prevent individual officers and your community from being sued.

In summary, where an individual presents some reasonable evidence that he or she has a possessory or occupancy right to a property, a criminal trespass charge is inappropriate. This does not preclude officers from charging individuals with other types of of tenses involving their conduct while on the premises. The owner or other occupant of the unit can only free themselves from the physical presence of their former roommate, housemate, tenant, live-in lover or friend by bringing a civil forcible detainer action to have the other individual peaceably evicted from the premises.

1 735 ILCS 5/9-101, et seq.
2 720 ILCS 5/19-4.
3 720 ILCS 5/21-2.
4 735 ILCS 5/9-101.
5 People u. Evans, 163 111. App.3d 561, 516 N.E.2d 817, 819 (1st Dist. 1987) citing Doty v. Burdick, 83 111. 473, 477 (1876).
6 Soldal V. Cook County, 111., _ U.S. _ 113 S. Ct. 538 (1992).
7 163 111. App.3d 561, 516 N.E.2d 817, 819 (1st Uist. 1987).
8 246 111. App.3d 792, 615 N.E.2d 839 (4th Dist. 1993).
9 People v. Brown, 150 111. App.3d 535,501 N.E.2d 1347 (3rd Dist. 1987).
10 745 ILCS 10/2-202.
11 _ U.S. _ 113 S. Ct. 538 (1992).
12 29 F3d 295 (7th Cir. 1994).

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