Mall Security, Flexing Their Muscles

mall1.jpgMall security doesn’t get much respect. And, who really wants to take flack from rich middle class kids that have nothing better to do than hang out at the mall and give grief to security guards just trying to do their job? Well, “K.M.B.” is one such kid, he confronted mall security, telling them to “F*&# off” twice, and “F*&^ You Cracker”. K.M.B. v. State, 2011 WL 3477077 (Fla. 4th DCA 2011).

Normally, you’d expect a disorderly conduct charge out of such language. But, KMB was arrested for trespass as well, while the officer was attempting to gather his personal information–in order to fill out a trespass form. Mall security testified at trial that “his staff” asked KMB to leave, but when the police heard all the “f-ing off”, KMB landed himself on the “Go Directly to Jail” spot. So, did the kid actually commit the crime of trespass?

The juvenile appealed his conviction to the Fourth District Court of Appeals, and the higher court overturned the trespass conviction. To understand why, it’s important to know more about the “crime” of trespass. Section 810.09 of the Florida Statutes requires proof of three elements, (1) you willfully enter the property, (2) without authorization, and (3) when notice against entering or remaining had been given. It’s this third element that’s the problem here.

In order to convict on a trespass, it must be proven that the person is on notice that he is no longer welcome on the property and may be arrested for trespass. (For further details, see Smith v. State, 778 So.2d 329, 331 (Fla. 2d DCA 2000). The Smith case notes the significant difference between a trespass case involving a property with a “No Trespassing” sign, versus a case involving a place open to the public, such as the mall found in KMB’s case. In finding that KMB’s trespass was not proven, the court noted that mall security’s testimony that “staff” told him to leave is “neither competent nor substantial evidence sufficient to establish an element of the State’s case”. Id. So remember kids, be respectful of those mall cops, because you might be the case, but you won’t be the ride to jail.