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‘You can’t resort to lethal force merely to stop a trespasser’: Baugher incident reveals complexity of law, attorney says

When it comes to property law and enforcing private property rights, a lot of the law comes down to what is reasonable, according to Westminster attorney David Bowersox, but with each situation can come details that make deciding what was reasonable in a particular instance difficult.

“This can be more of a spectrum than a bright line applicable to all cases,” he said.

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As a recent example, the case of the owner of Baugher’s Farm and Orchard’s chasing trespassers off of his property, but ending up arrested himself after the chase culminated with an altercation on a public road.

Bowersox, a partner with Hoffman, Comfort, Offutt, Scott, & Halstad in Westminster, agreed to comment about some of the issues raised but without commenting on the merits of the Baugher case, noting he knows nothing more than has already been mentioned in the public record.

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“I wasn’t there, I don’t know what exactly what was happening,” Bowersox said. “So I can’t prejudge it one way other the other.”

The situation, as reported in charging documents and court records, was on the evening of April 28, Dwight Baugher was tipped off by a neighbor that people were riding ATVs on his farm property and that he drove his truck to intercept the riders, as this was allegedly an ongoing issue he hoped to put a stop to. Baugher encountered three people, later identified as minors, on four-wheel ATVs in one of his orchards, allegedly fired a pistol into the air from his truck, and then followed the riders when they sped off.

Baugher then allegedly followed the riders off of his property onto S. Pleasant Valley Road, caught up with one of them and made a maneuver with his truck to cut that rider off, as well as firing his pistol in the air again. Baugher then called 911 and waited for police to arrive. When police did arrive, they arrested Baugher and charged him with with reckless endangerment, possession of a handgun in a vehicle, and second degree assault, among other charges, although a first degree assault charge was dropped.

The case brings up a number of legal principles, according to Bowersox, some of which are straightforward and others which are less clear. One central concept at play is that of private property and the right of an owner to tell other people to stay off of it.

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“You have the right to exclude, that’s been recognized as one of the hallmarks of private property ownership,” Bowersox said. It’s not absolute, he said — law enforcement may access your property with a warrant, public roads and easements may partition your property, etc, — but “you don’t have to allow every uninvited stranger on your property that wants to be there.”

Trespass, as defined in the criminal code, Bowersox said, involves someone being on your property without permission, but, “you have to be able to establish that person had reasonable notice that they were not welcome,” he said. “If you are having trouble with a trespasser and you think it’s going to continue and you want to be able to protect yourself and seek criminal charges, you post the property.”

Posting the property, that is, placing “no trespassing signs,” can be uncomfortable for some people, Bowersox said, or uncivil but, “you have to do that to protect yourself from the incivility of others.”

If a trespasser has been informed they are not welcome — this can also be done by letter, Bowersox said — and they continue to trespass, a property owner can call the police to pursue criminal charges or seek a peace order. If a trespasser has caused damage to property, the case for some form of legal remedy will be even stronger, he said.

But when it comes to ejecting a trespasser currently on your property by force, there may misconceptions of what is allowed under Maryland law, according to Bowersox.

“You can’t resort to lethal force merely to stop a trespasser,” he said.

Maryland legal theory employs a modified "castle doctrine,” Bowersox said, so that unlike in a “stand your ground” state, a person outside of their home has a duty to retreat from threats, unless it is impossible or dangerous to do so.

And even the use of force for self-defense in one’s home or in a situation where retreat is impossible must be reasonable in the context of the circumstance to be lawful, Bowersox said.

“You have to have a reasonable belief that you are in an imminent or immediate danger of death, or serious bodily harm,” he said. “You can not be the provocateur or aggressor; you didn’t start the fight. And whatever force you use has to be reasonable, no more than is demanded by the situation.”

Applied to enforcing property rights against trespasser, that means, “If someone comes on your property, you can use whatever steps are reasonable to get them off of your property,” Bowersox said, but you cannot use force against them solely because they are trespassing. “You can be forceful with them, argue with them, whatever. If they continue to trespass, you will probably have to call the sheriff.”

Following a person off of your property to make sure they have left is acceptable, Bowersox said, but things can get murky depending on how that is done.

“If I happen to follow them in an unreasonably threatening way, that may be different," he said.

When it comes to the use of other people’s private property, Bowersox noted, it is always possible to request and get permission to access the property from the landowner, such as with hunting.

“The Department of Natural Resources in Maryland says if I am hunting on someone’s property, I am supposed to have in my possession a signed permission slip,” he said. “A lot of people will not allow those sportsman, who are responsible and seek permission to enter onto their property because they have been burned by people who are trespassing. It’s bad for everyone.”

Getting written permission for activities other than hunting on another person’s property, such as a trail that traverses it or fishing in a pond, isn’t a bad idea Bowersox said, but whether written or oral, people should remember that the property owner can revoke that permission at any time. Further, permission to use the owner’s property in one way — fishing in a pond — doesn’t give a person license to use it in any other way.

“People need to understand that someone else’s property is someone else’s property, and if you want to enjoy it, communicate with the property owner and ask permission,” Bowersox said. “It comes down to reasonableness under the circumstances. The problem is, these circumstances are all too often emotionally charged.”

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