Police will still have the ability to use force to remove trespassers from Illinois homes and businesses when the calendar flips to 2023.
But how exactly procedures will change, and how trespassing laws will be enforced among the state’s different regions and in different communities, remains unclear, potentially setting the stage for inconsistent enforcement and confusion for Illinois police and property owners alike.
“A lot of smart legal folks all around the state are in disagreement over how this section of the law should be interpreted,” said Lemont Police Chief, who serves as legislative chairman for the Illinois Association of Chiefs of Police.
Lemont Police Chief Marc Maton
| Lemont Police Department
“And if all these people can’t agree on what the law says, the law needs to be fixed, or we at least need clarification.”
As Illinois prepares for elections this fall for governor and a host of other state and federal offices, accusations have flown back and forth in recent weeks concerning the likely effects of the state’s sweeping criminal justice reforms.
Known as the SAFE-T Act, the massive law was enacted swiftly in early 2021 by progressives in the Illinois General Assembly, who used the racial unrest and concerns about social justice and equity in the wake of the killing of George Floyd at the hands of Minneapolis Police to pass into law a litany of law enforcement reforms.
Principally, the law abolishes cash bail in Illinois, a goal long sought by left wing activists and criminal justice reform advocates. Illinois has become the first state to abolish the cash bail system.
Generally, judges in Illinois will now be required to evaluate the severity of an offense before ordering someone held in jail before they stand trial. The law creates a list of so-called "forcible felonies" for which judges might be able to order someone held in jail. These would include first and second degree murder, criminal sexual assault, robbery, arson, burglary, kidnapping, aggravated battery and others.
The new law also now differentiates between offenses considered to be eligible for probation and those considered “non-probationable.”
For those charged with the most heinous non-probationable offenses, judges are empowered to order them held in jail while they await trial, if prosecutors can demonstrate the person remains a specific threat or flight risk.
The law specifically states: “Detention only shall be imposed when it is determined that the defendant poses a specific, real and present threat to a person, or has a high likelihood of willful flight.”
Otherwise, under the law, those charged with probationable crimes could be allowed to remain free, while they wait months or perhaps even years for their cases to progress to trial and sentencing.
The law also specifically bars police from locking up people before trial if they are charged with certain non-violent offenses. Among these are offenses like criminal trespass.
Supporters of these measures say the changes will improve society, by allowing those accused of crimes and misdemeanors for which they previously may have been held to continue working, raising children and otherwise participating in society until they stand trial.
Supporters of the reforms say the current system is inhumane and unfair, as who is allowed to be free and who must remain in jail was entirely dependent on the ability to people to pay potentially costly bail bonds. They said it particularly harmed Black and Latino individuals, who are more likely to come from low income households and may not have the financial means to post bond, forcing them to languish in jail, while others charged with the crimes are allowed to walk free.
'The Purge?'
The reforms, however, have drawn a wave of criticism from police, prosecutors and others throughout that state, who have maintained for more than a year that the reforms will make Illinois less safe. They say it allows criminals to be free to commit more crimes while they await trial, and makes it significantly harder for prosecutors to keep those charged with crimes in jail and away from the community.
Critics have also warned the law weakens the rights of property owners. Particularly, they point to reforms within the SAFE-T Act that appear to block police from arresting and holding people accused of criminal trespass and other Class B misdemeanor offenses.
For instance, Keith Pekau, mayor of Orland Park and Republican nominee for Congress in the 6th Congressional District, has specifically warned the measure would forbid police from doing anything more than issuing a ticket to a trespasser, even if the trespasser has gone so far as to take up residence in a back yard shed and refuses to leave.
Republican gubernatorial nominee Darren Bailey and others have likened the reforms in the SAFE-T Act to the horror movie, “The Purge,” in which criminals are allowed one night a year to run free and commit any crimes they wish against anyone they find in the streets.
Paul Arena, the Northwest Vice President for the Illinois Rental Property Owners Association, said his organization is advising all property owners to be aware of the changes in the law, and to be concerned.
The IRPOA is a lobbying association representing residential and commercial landlords in the state.
Arena said the group’s position has been based on conversations concerning the interpretation of the law with state’s attorneys and state lawmakers.
He said the change to the law concerning trespassing enforcement is “a big problem for all property owners.”
“It will take control over who may come onto private property away from property owners,” Arena said.
In response, Gov. JB Pritzker, who signed the SAFE-T Act into law, and other Democratic supporters of the legislation, have called such claims “misinformation,” or outright lies.
Pritzker and his allies point to language in the law they say still gives discretion to judges, prosecutors and police officers to address legitimate threats to property owners and others in Illinois communities.
As to trespassing, they point to guidance from the Illinois Supreme Court’s Pretrial Implementation Task Force. That task force has interpreted the law to still allow police officers to remove trespassers from a residence or business at the request of property owners, take them to a police station for processing, and then release them with a citation and a court date.
But Maton and others say, while that seeming official interpretation will carry weight, there is still a wide degree of latitude within the statute for arguments in court over the actual powers afforded to police officers to respond to property owner requests for assistance with obstinate trespassers the property owners believe to be dangerous.
And those arguments could lead to a real risk of lawsuits against both police officers and property owners, alike.
'Unintended consequences'
Maton warned the law, as it is currently written, “will be applied inconsistently throughout the state.”
“I don’t think anyone intends to just let people camp out in other people’s back yards,” Maton said. “But laws like this, that have language that is, let’s say, inartfully written, have unintended consequences.
“Our folks (police) need clear guidance to make decisions on the street,” Maton said.
Scott Szala, an adjunct law professor at the University of Illinois College of Law, warned property owners concerned about the changes in the law to continue to call police in criminal trespass situations.
He noted Illinois laws still allow property owners who threaten harm, or actually harm, trespassers who pose no violent threat to them or others, to be sued or even charged with crimes.
Szala posed a scenaro in which someone is caught hunting without permission on another person’s land in a rural area of the state. In such a situation, he said, the property owner may be required to have posted no trespassing warnings, and then to ask the person to leave. If there is a disagreement, they should still call police, Szala said.
If property owners instead threaten trespassers with firearms or other weapons, they could be charged with assault, even if they never actually attack the trespasser. Confrontations that escalate into physical conflicts, in which punches are thrown, for instance, could result in battery charges, Szala said.
“I could envision a situation when someone wanders in with a weapon, the owner grabs his gun and goes down there, and it could escalate into something disastrous and tragic,” Szala said.
He likened it to laws governing landlord-tenant relations, which now forbid landlords from physically attacking or forefully removing difficult tenants.
“You can’t just physically drag someone out,” said Szala.
Szala agreed law enforcement response to trespassing under the new law could play out differently in different parts of Illinois.
But even under current law, Szala said, officers are still given discretion to respond based on the unique facts of each situation. And under the new law, Szala said he believed police will still be allowed to “escort” a trespasser off property, before processing and clearing the incident.
“I understand the concerns people have, and there is no easy answer,” Szala said. “Society can still take steps to protect themselves, but those steps must be reasonable.
For home and business owners, Szala said, “the key is, anytime you deal with a conflict situation, you don’t want to escalate the conflict.”
The widespread concern over the law, however, will ultimately lead to changes to clarify the powers granted to law enforcement to enforce private property rights, Maton predicted.
He said the current political football match over the coming effects from the law have complicated a quick solution. But he said the Illinois Police Chiefs and others are working on legislation they believe will revise the law to fix the “inartful” language in the law the state legislature’s Democratic supermajority pushed through and which Pritzker signed.