The law provides process servers with a defense to the crime of trespass. Note, it is a “defense” and not an “exemption”. RCWs 9A.52.070 and 080 define the crime of trespass. RCW 9A.52.090 provides defenses to the crime. Paragraph 4 provides a defense specific to process servers.
RCW 9A.52.070
Criminal trespass in the first degree.
| (1) |
A person is guilty of criminal trespass in the first degree if he knowingly enters or remains unlawfully in a building. |
| (2) |
Criminal trespass in the first degree is a gross misdemeanor. |
RCW 9A.52.080
Criminal trespass in the second degree.
| (1) |
A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in or upon premises of another under circumstances not constituting criminal trespass in the first degree. |
| (2) |
Criminal trespass in the second degree is a misdemeanor. |
RCW 9A.52.090
Criminal trespass — Defenses.
In any prosecution under RCW 9A.52.070 and 9A.52.080, it is a defense that:
| (1) |
A building involved in an offense under RCW 9A.52.070 was abandoned; or |
| (2) |
The premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or |
| (3) |
The actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him to enter or remain; or |
| (4) |
The actor was attempting to serve legal process which includes any document required or allowed to be served upon persons or property, by any statute, rule, ordinance, regulation, or court order, excluding delivery by the mails of the United States. This defense applies only if the actor did not enter into a private residence or other building not open to the public and the entry onto the premises was reasonable and necessary for service of the legal process. |
This last section, 9A.52.090(4), provides process servers with considerable protection but there are important limitations.
The first limitation removes the defense if the server enters into a private residence. Generally, entering a private residence is fraught with danger and problems. Once you cross the threshold and enter a private residence your physical and legal protections drop away almost immediately. Some protection is still provided by paragraph 3 but this could easily become a situation of the server’s word against that of the householder.
Not only does your defense to trespass weaken when you cross the threshold but the risk of physical assault increases exponentially. A server should cross the threshold and enter a residence only under the rarest of circumstances and only with a clearly understood invitation. Such circumstances do exist, such as when a person is disabled and cannot come to the door but clearly and expressly invites the server to enter.
The second limitation deals with buildings, or parts of buildings, not open to the public. For example, passing through a door, without invitation, marked with a sign which says “Employees Only” removes the defense. Another example is where a sign says “Visitors Must Report to the Office” or something similar. These are usually seen in and around public and private schools. Failing to comply with such a sign almost certainly removes the defense.
Finally, the entry must be “reasonable and necessary for service of legal process.” This limitation will be fact specific and based on the exact circumstances surrounding the server’s decision to enter the private property. No specific court cases are known at this time which were based on this clause but it is best to take a conservative approach. What seems “reasonable and necessary” to the server may not seem so to law enforcement or the court. Certainly a server should not damage any property or assault or injure someone in order to gain entry.
Generally, a process server is allowed to reach the outside doors of a residence, to enter into any area of a business open to the public, and to search the grounds surrounding a residence (such as the back yard) or business for the person he is attempting to serve.
Should a process server find himself in a situation where a property owner insists on holding him as a trespasser then, in most instances, the best response is for the process server to wait until law enforcement arrives. Arguing with the property owner over what the law says will usually be an exercise in futility. If possible the server should continue to attempt to leave the property and make it clear to the property owner that he is attempting to leave. Waiting for the authorities to arrive is generally the safe and prudent thing to do but each situation is different.
If the server has a cell phone available he should attempt to call 911 as soon as he realizes the property owner is going to attempt to detain him. This should be done even if the property owner has already called the authorities. Given the correct circumstances the process server may want to consider making an accusation of unlawful imprisonment against the property owner once police have arrived and taken the situation under their control.
Only under the most extreme of circumstances should a server resort to physical violence and then only in the form of self defense. Fortunately this is rarely needed.
Several states allow process servers access to gated residential communities or secure buildings. In such states it is a crime for the guard at the gate to refuse the server access. Unfortunately Washington is not one of them and the guards at gated communities have no obligation to assist process servers in any way. Entry may gained through the use of several techniques. Here are a few.
- If there is no guard at the door or gate it is possible to enter when someone with access opens the door or gate to either enter or leave.
- If the property is fenced it might be possible to scale it from a location which is not within view of the guard. Obviously camera systems may defeat this work around.
- Devise a subterfuge to practice on the guard, such as claiming to be a construction contractor with work to do on the property.
- Develop a working relationship with the property management office. Many of them are reasonable if approached in a respectful manner. Over time this is the best practice to follow.
Under no circumstances should you ever claim to be, or associated with, law enforcement. For more information on this aspect of trespass see the course article on Impersonating an Officer.
Conclusion
As process servers we have a valuable defense against the one criminal charge most likely to be brought against us, trespass. But the defense will only protect us to a certain point. It is vital to remember the statute states:
This defense applies only if the actor did not enter into a private residence or other building not open to the public and the entry onto the premises was reasonable and necessary for service of the legal process.
A professional server will understand, at least approximately, where the line is drawn.
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This is a rough diagram of a typical courtroom in the state of Washington. Courtrooms vary a great deal from city to city and county to county but they all have the same basic structure.
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