Good Use of the Trespassing Law?

This is a partial transcript of "The Big Story With John Gibson," April 20, 2005, that has been edited for clarity.


UNIDENTIFIED MALE: We have proven that the border can be secured by using a different model than Border Patrol has been using.


JOHN GIBSON, HOST: That, of course, the man behind the Minuteman Project (search). His different model consists of citizens taking matters into their own hands in Arizona. They're on patrol along our southern border, filling in the security gaps the feds can't get to.

And now, near our northern border, a fed-up police chief has his own model approach, charging an illegal alien with trespassing. Is it legal? Let's ask FOX News' senior judicial analyst, Judge Andrew Napolitano.

So, I think it was a sheriff up there, Judge, who said, "Hey, look, this guy has got phony documents, meaning he is not legally in the United States, meaning at least, in my county, he's trespassing." Now, it makes sense to a layperson. How does it sound to a Judge?

ANDREW NAPOLITANO, FOX NEWS JUDICIAL ANALYST: What's interesting, John, is that this local sheriff, whose behavior I commend — this is a novel use of the trespass law. There are no cases that we have been able to find in the country on this issue.

So, if you ask me how it's going to go, I don't know how it's going to go. He approached the Immigration and Naturalization Service (search) and said, "I have an illegal alien here with phony, false I.D. What do you want me to do with him?" They told him to let him go. That's when he arrested him for trespassing. Now, because trespassing in Massachusetts carries a maximum penalty of $1,000 and a maximum time in jail of six months, you normally don't put someone in jail for that crime.

They put him in jail. A local judge fixed his bail at $1,500. He made the bail. So, he's now free to walk around as an illegal alien when the local police say he's trespassing and the feds say, we don't care.

GIBSON: OK. So, is the sheriff in New Hampshire — I think it is the sheriff — is he going to start a trend? Are there sheriffs elsewhere that are going to say, "Well, until some court says he can't do that, I can do it, too"?

NAPOLITANO: You know, he might be starting a good trend, a trend consistent with the piece that we just ran on the Minutemen, showing the federal government that there are other parts of our society willing to do their duty to help secure our borders.

Let's face it. The guy clearly was illegal. And he was breaking the law by showing and carrying and attempting to use phony I.D. But the law has never been used this way. I can't predict which way the New Hampshire courts will go, but I say let's try it and see what happens.

GIBSON: All right, Judge Andrew Napolitano, thank you very much. Always good to talk to you.

NAPOLITANO: Likewise, John.

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