The Court of Appeals in an opinion issued in FREY v. U.S., compared and analyzed the legal difference between unlawful entry upon a “private” property versus a “public” property.

In reversing the defendant’s conviction for unlawful entry on May 5, 2016 – the Court held that she had entered a public section of the Library of Congress and thus was entitled to a jury trial warranting reversal.

The District of Columbia unlawful entry statute makes a legal distinction between entry upon a private v. public property.

Specifically, subsection (a) of the code prohibits unlawful entry into “any private dwelling, building, or other property, or part of such dwelling, building, or other property.” [D.C. Code § 22-3302 (a)(1)].

Violations of subsection (a) are punishable by a fine, imprisonment for not more than 180 days, or both.

Subsection (b) however prohibits unlawful entry into “any public building, or other property, or part of such building, or other property.” [D.C. Code § 22-3302 (b)].

Violations of subsection (b) are punishable by a fine, imprisonment for not more than six months, or both.

Here, the defendant was charged with entry upon a private property, which is punishable by more than 180 days – and non jury demandable – all while she had actually entered the library of Congress during public hours and had fallen sleep in the library while the library had closed and thus traversed through the library to find exit point entering a private non public portion of the library at which time she was arrested for unlawful entry.

The charging document had alleged that Ms. Frey had entered or attempted to enter the Adams Building of the Library of Congress.

Defendant accordingly demanded a jury trial, arguing that the Adams Building was a public building and that she therefore had been charged with violating subsection (b).

The United States argued at trial that Ms. Frey was charged with violating subsection (a), because she entered a private area of the Adams Building and did so at a time when the building was entirely closed to the public.

The trial court concurred with the government’s argument and denied jury demand giving rise to this appeal.

There is no dispute that the Adams Building is a public building for purposes of the unlawful- entry statute as predominantly a library and open to the public.

The issue the Court specifically addressed was does a defendant who unlawfully enters a private area of a public building, or a public building at a time when the building is closed to the public, violate subsection(a) or subsection (b)?

The court in reviewing the legislative history of the statute held that “there is no specific indication in the legislative history that the Council intended to tailor the unlawful-entry statute precisely to First Amendment doctrine by subdividing buildings into public and private areas and preserving a jury-trial right only for defendants prosecuted for unlawfully entering a public area of a public building.

To the contrary, testimony presented to the Council appears to reflect the understanding that the jury-trial right would be tied to the public character of the building as a whole, not to specific areas within a building.”

Thus the jury demand rights correspond with the private v. public nature of building as a whole. Here as the defendant Frey had entered a public building – she was entitled to jury demand and denial thereof by the trial judge was a reversible error.

Refer to our criminal law page: Washington DC Criminal Defense Lawyer for more information on this subject and other criminal offenses in the District of Columbia.

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Categories: Criminal Defense.