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8 Tips to Help Process Servers Avoid Trespassing Charges

  • June 29, 2011
  • by ServeNow Staff

Processs server can avoid trespassing chargesEditor’s note: Laws vary between states, so be sure to know your local laws that affect service of process. This article is intended to offer general tips that teach process servers how to become more informed about what activity may give rise to trespassing concerns in their individual states.

Process servers sometimes find themselves in positions where they are walking a fine line between doing their job and trespassing. More and more, we are hearing that it is not uncommon for a person being served to call the police to say that the process server is trespassing on their property. Whether or not you have actually crossed that line may ultimately be up to the courts. But, you can often avoid the risk of criminal prosecution by using equal parts legal knowledge and common sense.

We spoke to Colorado criminal defense attorney Lara Marks about ways to avoid trespassing charges. While she can only comment specifically on Colorado law, Marks did offer her thoughts on how process servers nationwide can boost their knowledge about preventative measures to sidestep trespassing charges.

1. Consult with a local lawyer

Marks admits that “sometimes statutes are pretty difficult to decipher even with legal training.” Doing your own research is a great first step toward building your knowledge, but you should consult a lawyer to be sure you have a clear understanding of the law. To learn more about the rules in your state, visit ServeNow's section covering process serving laws.

2. Pay close attention to local statutes and ordinances

Marks recommends closely examining local ordinances because sometimes the law can vary based on the local municipality or county. In certain circumstances, you could be serving in one county whose local laws may be slightly different than those in a county five miles down the road. Local laws usually define key terms, outline penalties for conviction of trespassing, and offer annotated cases describing specific scenarios that have been the subject of court cases.

Local laws also often contain important definitions, such as behavior that is appropriate in fenced or gated areas; common areas of hotels, motels, condominiums or apartment buildings; motor vehicles and more. Failing to know what your state says regarding trespassing in these and other areas can lead to making decisions that courts may view as unlawful.

3. Assess each situation with fresh eyes

Using your knowledge of local laws, you can run through a mental checklist to determine your trespassing risks with each job. Is it a gated community? Is there a sign warning against trespassing? Have you been verbally ordered to leave the location? Once you know whether these are legal red flags in your state, answering questions such as these and acting accordingly should help you avoid problems in most cases.

4. Explore your location options

If you’re concerned about trying to serve the person in a certain location because of possible trespassing charges, determine if there is a less risky location where you can serve them.

5. Voice your concerns to the client

Marks acknowledges that some clients will push to have papers served at all costs, without concern for the process server’s safety or professional well-being. While you want to practice due diligence in serving someone, you do not want to put yourself in harm’s way to appease overzealous clients. It is costly and time consuming to fight a legal battle if you are charged with wrongdoing.

Ideally, the process server will feel comfortable bringing his or her concerns to the client if there is a clear risk of criminal charges.

“If you are concerned about an evasive person and your instinct is telling you there’s a problem, communicate with the attorney for whom you are working. When someone is refusing to be served, there may come a time when it makes sense to have a court weigh in on the evasion – rather than put you as the process server in a precarious legal position,” Marks said.

6. Carefully document each serve

Taking detailed notes about how each serve can help you if you face trespassing accusations. Jot down such aspects as date, time, number of attempts, physical characteristics of the property (fences or gates, no-trespassing signs, etc.), and interactions with subjects. The more information you can memorialize, the better. Just know that while the information you provide can support your case, it can also become “discoverable” information in certain circumstances. Take care to properly record your activities and assure yourself that your service efforts are lawful.

7. Join a process server association

Most state process server associations have legislative committees that are well-versed with local laws and stay current with the laws as they change. They are a valuable source of education and support to help you prevent or fight trespassing charges. Associations are also active in working to change laws to make them more process server-friendly, so as a member you can play a part in those efforts.

8. Contact a lawyer if charged with trespassing

Marks has two main pieces of advice if you are charged with trespassing: know your rights and contact a lawyer.

“My recommendation to anybody who fears they may be facing criminal charges is that the first thing you should do is contact a lawyer in your area,” she said.

For additional information in Colorado:

Lara Marks:
Foster Graham Milstein and Calisher, LLP
621 17th Street, 19th floor
Denver, CO 80293
[email protected]
(303) 333-9810

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