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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 32739
Experience:  Began practicing law in 1992
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Hypothetical question here, but relevant to a case Im involved

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Hypothetical question here, but relevant to a case I'm involved in... If I work in an office and one day find someone in my office (say, for example, a news reporter looking for a story), riffling through my personal effects, can I sue them for trespass? While I may not own the building or have any sort of lease on the office (possessory interest), I do have an expectation of privacy and do own the property in that office. This would be in Texas, if state laws vary...

Dwayne B. :

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.

Dwayne B. :

It depends on the exact facts. If you worked for a business and the person going through your office was also an employee of the business then you couldn't sue them, since the employer actually has the interest in the office.

Dwayne B. :

If it is just someone who walked in off the street then yes you could sue them for that.

Dwayne B. :

The website is showing you are offline so I will save and exit so I can assist others. If you have any additional questions please feel free to ask them in this thread. I will be online most of the day but it may take a little while for me to answer if I am assisting others.

Customer:

Thanks for the quick answer! Actually, my computer is set to always show me "offline," as I get too many people wanting to chat at the wrong times! lol! My hypothetical question is because I'm suing (pro se) a news agency for their reporter trespassing on my property. The real property actually belongs to my partner, and we both live here together, though not married. The defendant is trying to say that since I don't own the property, I have no possessory interest and thus no jurisdiction (not sure if that's the word) to sue them for trespass. They compare it to a security guard who has authority to manage the property, but cannot sue for trespass. My reply to that is, if the guard had an office in the building and a reporter walks in and searches it, then yes, he certainly CAN sue for trespass, even tho he does not own or lease the room the office is in. My partner and I are suing jointly, by the way.

Dwayne B. :

I understand.

Dwayne B. :

I think under those circumstances that you would have the right to sue.

Dwayne B. :

Do you have a lawyer?

Dwayne B. :

I am going to leave this chat window open but have to step away for a couple of minutes. When you return to it please post a response and wait here and I should be back very quickly.

Dwayne B. :

I'm back

Customer:

As I said, we are going this pro se. Couldn't find anybody willing to fight the system in our area! The reporter came out to cover a warranted search of our property, and was invited by the local DA. Sheriff's deputy at the gate told reporters to come right in, even tho both of us were there saying we did NOT want any reporters on the property. The deputy said he'd arrest us if we tried to exclude anybody. Of course, the reporters now "do not recall" hearing any fight between us and the deputy, and claim they had a First Amendment right to trespass (they refuse to call it that) in pursuit of news.

Dwayne B. :

I don't know of any law that allows a trespass in support of a news story just like they can't illegally wiretap a phone line to get a story.

Dwayne B. :

What I was going to suggest, and I haven't done the research on this, is to look at exactly what the case law says is required to give you a possessory right in a property and then to have your partner use that language in stating that you had such a right.

Dwayne B. :

I'm sure there is case law on the topic, particularly in the area of criminal law when property is searched.

Dwayne B. :

Have you done much legal research?

Customer:

Much? Well, the past 3 years we haven't done much else! We've checked as much as a pro se can. Google Scholar and such, but of course, have no access to things like Lexis Nexis or Black's. I had paralegal training back in the 90's but it's not much help now.

They are also using the relatively new "Anti-Slapp" act as a defense. This is supposed to protect people who speak out from retaliation by government and big businesses. It can't protect trespass, but the judge seems to think it can!

Dwayne B. :

Google Scholar is pretty good and free. This is one of those cases where you need to be a whiz on legal research. You may want to use something like odesk.com or freelancer.com or elance.com to hire people to do research for you.

Dwayne B. :

Did you allege any other causes of action besides trespass?

Dwayne B. :

negligence, etc.?

Customer:

4 causes of action... trespass, invasion of privacy, theft of images, and unauthorized participation in a warranted search (fed.rule). Of course, they are fighting all of them and pulling stunts to get dismissed, as they know if it goes to trial they are sunk.

Dwayne B. :

Where are you at in the case?

Dwayne B. :

Let me give you a link to some books as well http://www.lessonsinlaw.com/the-guerrilla-guides-to-the-law/

Customer:

Well, we started it in January, after the reporters being dismissed with prejudice from a federal case where we are going after the law enforcement for several things. (Probably a whole other question here!) There's actually three defendants, each with their own defense counsel. One is fighting it with a lot of motions. Two are not doing much, but all have now filed copycat motions to dismiss, based on that Anti-Slapp act. (Many states now have it, and it's a good law if used properly) We are supposed to have a hearing next week on those motions to dismiss.

Dwayne B. :

They are good guides to the legal areas they address and the website itself has some good, practical info for pro ses.

Customer:

Thanks. Have that opening now in a new tab!

Dwayne B. :

As to the issue of they can trespass in pursuit of a story, that's just BS.

Dwayne B. :

I can't imagine any case that would allow that assuming that the case is used in it sproper context.

Dwayne B. :

The argument to make on those issues is that means they essentially can do anything, even enter the judge's office and pick through their belongings, get in their personal emails, etc.

Dwayne B. :

Bug their cars, etc.

Dwayne B. :

I'm not familiar with the anti-SLAPP actions, although I understand the principle. It's just nto something I've hit yet.

Customer:

That's what I thought. But the judge seems scared of the Anti-Slapp law. He actually did dismiss one of the three defendants based on it, and I've filed a motion to reconsider. If he won't, I fully intend to appeal.

Customer:

Yes, in my replies, I

Customer:

(sorry...)

Customer:

In my replies, I pretty much said the same. And yet they persist. It's like I'm arguing into a vacuum.

Dwayne B. :

When you do your research on the trespass possessory interest issues look at criminal law issues first because I remember reading a lot of cases dealing with rented rooms, permission to search a house not including certain areas, etc. Then you can look in the civil area but teh criminal cases will giv eyou some good theories and arguments.

Dwayne B. :

They are bullies and the judge is probably scared of them because judges are elected in Texas and he doesn't want the press mad at him.

Dwayne B. :

You may even want to consider filing a Motion to Recuse and asking for a retired judge from a different area to hear the case.

Dwayne B. :

Be very careful about the Motion to Recuse though.

Dwayne B. :

You are in state court on this one, correct?

Customer:

It's funny, really. The defense attorneys make no secret that they look down their nose on pro ses, and are trying to make it hard for us. And at the same time, the judge is trying to show that HE does not discriminate! First appearance for a hearing, the judge recognized one of the attorneys as an old acquaintance and friend. I knew then that he'd be biased! Yes, I know if a motion to recuse is denied, the judge may not be nice anymore, to say the least! Yes., this is in state district court.

Dwayne B. :

And it is tough on pro se litigants because you are held to the same standards as an attorney. I think the playing field is being leveled through the use of those contract websites though. I recently sent someone there and they did very well by hiring someone to write their briefs for them. The prices were reasonable and the work was apaprently excellent.

Dwayne B. :

The privacy interest argument is hard to make against a non-governmental entity. You may want to look at what would have happened if they would have founds something illegal in their search or some other way to make it where they are acting as an agent of the state.

Dwayne B. :

I've never seen it done with a reporter but I've seen it used with other people like CPS, medical personnel, etc.

Dwayne B. :

The privacy restrictions are more stringent on a state actor.

Customer:

I can pretty much hold my own in writing. It's appearing in court that bothers me, since I'm deaf and rely on an interpreter, and it's pretty hard to object or respond at the right time or quickly enough. My partner is learning, but still not courtroom savvy.

Dwayne B. :

Ah. I can see that being an issue. You could ask for an accommodation in court like not only using the interpreter but also slowing the pace to allow time for the interpretation and clarification and then a chance to respond before they move on.

Dwayne B. :

I assume you are going to want a jury trial so you may want to invest in the book on that page I gave you about picking a jury.

Dwayne B. :

Most lawyers are horrible at jury trials and even worse at picking juries no matter what they say.

Dwayne B. :

You can really even things up with that book and the methods used in it.

Customer:

Okay, just to make clear... Sheriff and DA both searched the property for 3 days without a warrant, then got one the 4th day. They invited the reporters to come with them, and everybody is now saying the reporters were not state actors. But they did ride along and came at the behest of the DA. Yes, we are asking for a jury trial here.

Dwayne B. :

I think it is a huge issue. It also throws some doubt on the reliability of what they found. I think you can play up that angle. Get copies of all the favorable articles on the police before and after this, etc.

Dwayne B. :

Ask how often they allow civilians to take part in their searches, get a copy of their handbooks, training manuals, etc describing sealing off a scene and how to do searches, etc

Customer:

Okay, will check it then.... My partner is reminding me it's my turn to cook and she's hungry! So can I get back to you later, depending on what I find?

Dwayne B. :

Sure. Once you issue a Positive Rating the question locks open and will no longer time out. If we go much longer the website requires that you open a new question because it will start locking up when the conversation gets too long. It looks like you're a subscription customer so of course it doesn't cost any extra. If you do open new questions and want me to address them just start the question with FOR DWAYNE B. and I will pick up as soon as I see it. I try to get online for at least a few minutes every day to check and see if anyone is waiting on me.

Customer:

The fed. case is big and complicated, and is actually in limbo right now as the judge is transfering it to a magistrate and they don't want to do anything! But the state case is simple and being made complicated by the defense.

Dwayne B. :

That is a tactic they use to try and wear you down.

Customer:

Great. I can do that. Yes, it's obvious they are trying to wear down both us and the judge.

Customer:

Thanks and will catch you later then! Great advice here alreadyt!

Dwayne B. :

Also, consider what changes could be made to the procedures in court due to your hearing issues. You can then file a motion to do that arguing that the ADA requires accommodations and it will mess them up some as well.

Dwayne B. :

My philosophy is always attack, never defend.

Customer:

Obviously, that's what the defendants are doing!

Dwayne B. :

Exactly, but just because you are pro se. Defense attorneys typically avoid trials like the plague.

Customer:

Nice to hear that from somebody who knows! I'd figured as much, but then, I'm just a layman...

Dwayne B. :

You should also hire a legal researcher to do an around the country search on reporters, limits imposed by courts, and when they've been found to have crossed over the boundaries.

Dwayne B. :

Trial law is a different animal than anything else. Most lawyers don't take any cases to trial and even active ones only do a few a year.

Dwayne B. :

Then there are others, probably less than 5%, that do lots and lots.

Customer:

I did cite some case law, including the famous Wilson v. Layng (not sure if that's spelled right). Several other recent cases too.

Customer:

Thanks again for now, and what do I do, just leave this chat open, close it, or what?

Dwayne B. :

You have to know all of the cases or they'll beat you death with them.

Dwayne B. :

If you would, issue your Positive Rating and then if you need to come back here you can or if you open another question this one will remain available if you need to go back and check something.

Customer:

Gotcha. Will do before my partner starves! lol!

Dwayne B. :

I understand.

Customer:

Thanks again and have a great evening!

Dwayne B. :

I'll exit now but best wishes to you on this and please don't forget to leave a Positive Rating (of course I’d suggest Excellent!) so I get credit for my work.

Customer:

Will do!

Dwayne B. :

Be sure and ask for me if you have anything else. I use to screen name JD 1992 and DWAYNE B. either will get to me.

Dwayne B. :

Bye!

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