City Attorneys

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  • 1.  Jurisdiction and Trespass

    Posted 19 days ago

    I have a 2-part question.

    I represent a Village who, prior to my hiring, signed an interlocal agreement with the local NRD to take over ownership and management of a recreational park that is outside the corporate limits of the village. The village has posted park rules at the entrances. One rule is "No ATV's." The village caught a young man riding around on his ATV, and they want to serve a citation on him for trespassing. I don't think that is the appropriate charge, but I'm looking into other options.

    Part 1 - I don't know if the village has jurisdiction to criminally charge anyone at the park. Since the park is owned by the village, is it "within corporate limits?" The park is about a mile outside the village proper, so I don't know if the ETJ would apply here. It would be close. I don't think the park was ever annexed into the village as I believe a continuous tract needs to exist (which is not the case here).

    Part 2 - If the village has jurisdiction, what charge would be appropriate? This village uses the 2015 version of the Basic Code. Is criminal trespass an option? What about criminal mischief? I don't practice criminal law, so I am a bit outside my element here.

    Any help would be appreciated. Thank you.



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    Daniel McMahon
    McM Law Office, L.L.C.
    Hastings NE
    402-834-2022
    dan@mcmlawhastings.com
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  • 2.  RE: Jurisdiction and Trespass

    Posted 18 days ago

    If the area isn't within the corporate limits of the village, I don't think the village has jurisdiction to prosecute any violation of its ordinances that may happen there.  Only the county would have jurisdiction-and its jurisdiction would be limited to state law violation, not village ordinances or village rules.  I don't think village police officers even have jurisdiction to police the area, absent some interlocal agreement with the county, because it's outside their "primary jurisdiction."  See Neb. Rev. Stat. 29-215.  


    For some offenses, being in the ETJ zone may vest jurisdiction-i.e., zoning violations you want to prosecute criminally and possibly nuisance abatement and building code violations, if the village has passed an ordinance that extends jurisdiction over those offenses to the ETJ zone.  But a violation of an ATV ordinance or park rule is something altogether different. 

     

    Even if the village were to have jurisdiction, I don't see a trespass.  Trespass requires proof that the person knew he/she wasn't supposed to be there (with or without the ATV).  Unless the village has an ordinance that penalizes violations of park rules generally, or the ATV ordinance itself criminalizes operation of ATVs in the park, or there is a very general code section in the traffic portion of the code book that you could creatively apply to this situation, I don't think the "no ATVs" park rule is really enforceable from a criminal law standpoint. 



    Matthew M. Munderloh

    Johnson & Mock, PC, LLO

    9900 Nicholas Street, Suite 225

    Omaha, NE  68114

    402.504.1445 (direct)

    402.346.8856 (office)

    mmunderloh@johnsonandmock.com

     

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