The Rightful Remedy for Trespass
The act of trespass, that is, entering property that does not belong to the person who is making entry against the consent of the owner, is a violation of the property owner’s right to exclude.
However, the right to exclude is not a right to impose extra obligations upon the trespasser as is often mistakenly said by those who are not versed in libertarian voluntaryist property rights theory.
For example, if someone were to enter a restaurant that required shoes and the entrant does not have shoes, the property owner does not have a right to force shoes upon the shoeless trespasser.
Rather, the owner has the right of removal, which means they can tell the trespasser that they must leave the premises, put on shoes, or face physical removal.
If someone resists leaving, the owner or owner’s agent has the right to use force commensurate with the resistance to get the trespassing individual removed from the property. This escalation must be narrowly tied to the threat thus, someone who is simply not complying with a special rule for an otherwise public-facing business cannot be harmed further out of retribution.
For example, if someone came into a restaurant without shoes, it would be an unethical escalation to chop of their arm for lack of compliance. This would be an escalation of harm creating a new property rights violation in aggravated battery to the affected individual.
This narrowly tailored rightful remedy via removal is key to ensuring that property rights are respected while not furthering harm.
It should be noted that this limitation on trespassing remedy is strictly for the act of trespass itself. It does not speak to independent threats for which other forms of defense, restitution, or punishment may be merited.
For example, someone who breaks into a restaurant at night to burglarize the place is making a categorically different violation than simple trespass as they are breaking into the restaurant to steal goods. This makes the entry not only trespass, but also burglary.
Individuals who are causing damage to the property and/or who are at the property to commit independent violations can be resisted with self-defense measures commensurate with the threat, such as using defensive force with a gun to stop a rapist who has trespassed into one’s home to commit an act of rape.
When this trespassing remedy norm is consistently applied, then the rules of property owners can be metered effectively and violators can be removed from the subject property without unnecessarily escalating violent force.
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