Talking terminology: “Trespassers will be prosecuted”

“Trespassers will be prosecuted.”

GarnerDo you know Bryan Garner, author of Garner’s Modern American Usage? You don’t? Get thee to his blog immediately. Subscribers get an entry or two a day from his usage manual, a resource every writer should have and rely on, and a quote about language, speech, or usage.

Garner also teaches lawyers how to write better. His books and seminars are popular, but what I count on are his “Law Prose Lessons,” aimed at increasing clarity in legal writing. This one I’m quoting in full, because the distinction he notes is often mistaken in novels and news accounts as well.

“”Trespassers will be prosecuted.” This phrase, which most readers would construe as referring to criminal proceedings, usually expresses an untruth. In most states (Louisiana is a notable exception), trespass to land is ordinarily a tort — not a crime. Although the landowner can sue, the district attorney won’t prosecute. But a trespasser who causes damage, as by trampling crops or breaking windows, can be criminally prosecuted.”

A tort, readers of Books, Crooks & Counselors will recall, is a civil claim asserted by one individual against another, as opposed to a crime, a violation of criminal law, the rules of society as agreed upon by the state or federal legislature and enforced by the prosecutor (sometimes, but not always, called the district attorney), on behalf of society as a whole. So if you go walking or hunting on private property, you won’t be prosecuted by local authorities, although the property owner could sue you. But if you break into a house, expect to be charged with the crime of trespass, and maybe more.