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I read Scalia's Heller opinion. Blunt is a good description. I was a little put off by the fact that he more than once stated a legal principle without giving any reasoning behind it. Somebody else noticed it, too, and wrote a law review article on it. Now those bloopers from out of the blue are in the dicta the lower courts will springboard from. The decision was very narrow. The dicta far too wide. The writing perhaps not his best. Considering Heller is destined to become one of the more standout case in American jurisprudence, it's shame Scalia didn't seize the moment to wax poetic.

While there are still trespassers to contend with by whatever means necessary, one does not find such eloquence in court opinions today.

Imagine being a judge back then, sitting at your desk, no air conditioning. Flush toilets may not have made it to all corners of Texas by that time. You can't outsource the opinion to India via the internet. The only thing unconstitutional is the dead heat of summer. They must have been on a roll.

The precedent in Texas for evicting trespassers:

LITTLE SANDY HUNTING & FISHING v. BERRY, 194 S.W. 1161 (Tex.Civ.App.-1917)

While we agree with Holmes that it appeared that the hunting and fishing club was the owner of the 34 acres of land and entitled to the possession thereof, and that Berry was in the attitude of a trespasser thereon, we do not agree that it would have been lawful for the club, or that it was lawful for him (Holmes) on its behalf, to forcibly evict Berry from the land. The law as determined by the courts of this state is to the contrary of such a contention.
Sinclair v. Stanley, 69 Tex. 718, 7 S.W. 511; Baker v. Cornelius,
6 Tex. Civ. App. 27, 24 S.W. 949; Crawford v. Thomason,
53 Tex. Civ. App. 561, 117 S.W. 181.

So, if it be admitted that the relation of master and servant existed between the parties (which we do not decide), and that plaintiffs were trespassers, nevertheless THE ACT OF DEFENDANTS IN FORCIBLY EVICTING PLAINTIFFS WAS UNWARRENTED, for the reason that, under the statutes of Texas, defendants could, by resorting to distress proceedings or by sequestration, lawfully repossess the house.


RAY v. DYER, 20 S.W.2d 328 (Tex.Civ.App.-Amarillo 1929)

To this proposition we cannot assent, as we believe it to be in
conflict with the great weight of authority, as it certainly is with the
established policy of our government and the genius of our laws. Adequate
provision has been made in our laws for the recovery of possession of
property which has been forcibly taken or forcibly detained; and, as said
in Warren v. Kelly, 17 Tex. 551, if one holding title to land was
permitted, by himself or his agent, with force and arms, to dispossess one
in peaceable possession, the consequences would be breaches of the
peace, oppression and bloodshed, and trial by the use of the bowie knife
and revolver would be resorted to, instead of the quiet and peaceable
remedy afforded by the due course of law in the judicial tribunals of the
country.

9.41: terminate the other's trespass on the land

Good call, srothstein. However, I believe the wording is that a property owner can stop, or end the trespass of another. Once he has been confronted, his trespass is effectively over and he must be allowed safe passage off the property and is no longer trespassing at that point, but leaving under the color of authority. If he refuses to leave, the trespass continues. All the statue says is the property owner can stop the trespass by use of force. If the trespasser is knocked back over the landline in the course business, so be it. But the statute does not deprive the trespasser of any rights, nor does it empower the property owner beyond the use of force to stop the offense. The use of force to physically move the offender to a different location is not authorized. In theory, you could beat the trespasser to a pulp if that's what it took to get him to leave on his own or until he could no longer continue his trespass and consequently it is ended, but you could not drag him off the property. Taking control of someone and forcibly moving them a significant distance is kidnapping. Again, good call.

If you think the system doesn't work that way

Again, there appears to be no statutory authority in Texas for a security guard to remove a trespasser by force.

How the system works is, in Texas, a matter of common law practice, and that's how it works, I agree.

But strange things happen on appeal, and should a large dollar amount be involved, parishoners could find themselves tithing to a prevailing personal injury plaintiff in lieu of their church. Large dollar amount plaintiff get justice more frequently than the average shmuck who, for example, wanders into the wrong bar.

If you do not leave, they can use the minimum necessary level of force to make you leave

While under the Code of Criminal Procedure, Title 14.01, a security guard could make a citizens arrest for disturbing the peace, I find no authorization for forcing a criminal trespasser to leave a premises, either without effecting an arrest of the trespasser or after an arrest. Certainly without an arrest in effect, forcibly removing the trespasser would constitute kidnapping.

The old man did the right thing. He left the church in question, and did not go back.

There is no legal recourse to people who get in your face like that security guard got in his. But if you will notice, they are like psychopaths. Always looking for the weak ones to come down on.

If you do not leave, they can use the minimum necessary level of force to make you leave

I seriously doubt that. Is that actually authorized by statute or common law in Texas?

As far as that little twerp of security guard goes who spoke disrespectfully to the older gentleman, a good female dog slap would be in order.