The Pernicious Fascism of the Barring Notice

I don’t know how things are in other areas of the country, but here in DC we have a rash of police officers and security guards issuing barring notices to people, ostensibly on behalf of the property owners. The DC Police Department describes the barring notice fairly innocuously:

A barring notice is a tool that property owners and/or persons lawfully entitled to possession of property (and their agents whom they have approved to serve in such a capacity) may use to restrict an individual who is not lawfully present on their private property to ensure safety at the premises.  If individuals violate a barring notice by appearing on the property after having received notice that they are not permitted on the property, they may face arrest and/or prosecution for unlawful entry on the premises

It all sounds so reasonable: property owners have the right to tell people to leave their property and not come back. Violators can be charged with Unlawful Entry under DC Code 22-3302, which carries a max of 180 days and $1000 fine. The police and security guards, however, have been using these notices as a put-into-jail-free card, especially against the homeless and people in public housing.

Often police officers pressure restaurant managers and store owners into allowing them to issue a barring notice against an “undesirable” patron. For example, I have had a couple of homeless clients who have had barring notices from the local McDonalds, Burger King, and Safeway.  (Theoretically, police do not have the right to bar people from private property – see Kelly v. U.S., 348 A.2d 884, 887 (DC 1976)). The problem is that these restaurants and stores continue to want to take the clients’ money.  So they allow the “barred” individual back in to buy food, eat, etc. But then the clients can be arrested for “violation” of the barring notice sometime much later, even though they were allowed to come back in after issuance of the notice. These people then face charges of Unlawful Entry.

A different problem occurs when security guards of public housing complexes issue barring notices to “undesirable” guests of tenants, even if they live there with family members, etc. The security guards use these to effectively evict these people from their apartment without going to court (though the lease-holding family members can stay).

There is no statute that prohibits violation of a barring notice. But the police (and often the courts) treat the barring notice as if it were a stay-away order or civil protection order issued by a judge (with unlawful entry carrying the same penalty as violation of one of these orders). At most a barring notice should be used as evidence that a property owner doesn’t want the person on his/her property and the person knows he is not invited, IF the property owner is consistent about not allowing the person back in. But that’s often not what happens; in many cases, the person is allowed back in from time to time, but then pisses off a police officer who uses the barring notice to arrest him and charge him with unlawful entry. The problem arises when the barring notice is treated as a presumption that the crime was committed, short-cutting the government’s burden of proof.

I suppose I am venting. I got an acquittal on an unlawful entry case based on one of these barring notices today, so you could say the system worked, sort of. My client should never have had to face these criminal charges with the risk of jail time. I am just pissed at these things and how they seem to work in practice, that’s all.

Update: See this in-depth discussion on how barring notices are being used as a tool of discrimination.

7 responses to “The Pernicious Fascism of the Barring Notice

  1. I have a barring notice for no criminal reason they say my family member I urinated outside where I live & security I issued

  2. I would highly recommend visiting the DC Bar’s Advice and Referral Clinic (second saturdays of every month) – See http://www.dcbar.org/for_the_public/programs_and_services/advice.cfm. They may be able to help you get the barring notice lifted – I believe that issuing a barring notice to a person who lawfully lives in an apartment is constructive eviction (but the lease-holder would have to make that claim).

  3. Does a barring notice show up on a criminal record or a background chekck? Even if it hasnt been violated, just issued out.

    Thanks

  4. The barring notice itself does not show up on a criminal record or background check. Usually unless there is an unlawful entry charge or some other arrest or charge that led to the issuance of the barring notice, there is nothing in the public record.

  5. “Often police officers pressure restaurant managers and store owners into allowing them to issue a barring notice against an “undesirable” patron. ”

    So, how did the police get there in the first place? Apparently, the restaurant manager or store owner CALLED 911 for the police to respond, for “the undesirable patron” complaint. Rather than cart your client off to jail, for theft, or other minor crime, the “undesirable patron” is barred from the premises. Once a barring notice is issued and a subject returns to the premises, the owner/manager must ask the subject previously barred to leave and if he refuses, he/she may be arrested for unlawful entry.

    • You are basing your premise on an assumption that someone called 911. That’s not always the case. I’ve never said that private property owners don’t have the right to exclude people from their properties. I’ve had many cases where the so-called “undesirable patron” is welcomed back in to spend their money, and the police act on their own to arrest a person for unlawful entry.

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