- Oct 13, 1999
- 2,812
- 0
Don't know if this stuff made it on DRN or not. It was a couple of e-mails I received when I was on a business trip. Granted most of the riders trespassing are on ATV's. I'm not sure how most of you feel about this stuff, although the guy does have a point when it comes to trespassing, he's definitely taking "his" cause to the extreme. Bottom line, be aware of where you are riding.
Note: I (hopefully) deleted all e-mail addresses referenced below to prevent adding more fuel to an already volatile situation.
---Woods
Stakes raised in ATV fight
Grafton-- Landowner Mark Ferran wants riders to stay off his property
By ALAN WECHSLER, Staff writer
First published: Thursday, May 23, 2002
This week Mark Ferran laid down the law. Specifically, he taped it up at Town Hall, the local library and the general store.
What he posted on Tuesday were notices to local all-terrain vehicle users and their parents, listing various state laws that permit the use of physical force to prevent people from escaping from the custody of a citizen's arrest.
Ferran, now in his seventh year of trying to keep ATV riders off his 300 acres of woods, is trying a new tactic: a disposable camera in one hand, a can of pepper spray in the other. He said he intends to photograph the face of everyone he catches riding through his land.
And the pepper spray? Ferran, who said he has been physically threatened over the years, maintains that it's now only for protection. But he also said he may have to start using the spray if riders refuse to take off their face masks and helmets and submit to having their pictures taken.
"I just wanted to let them know the rules of engagement,'' he said, "because they seem to keep wanting to come back for more.''
The problem of ATV use on private property is common in rural areas around the state, although many landowners do not object to ATVs riding through their woods. Ferran, 32, an unemployed law-school graduate who lives in Albany, takes the situation more seriously than most.
His family has owned the Grafton land for 30 years. He was arrested in 2000 for shooting out, with a shotgun, the front tire of an aggressive ATV rider. The charge was dismissed, but last summer he was arrested again and charged with reckless endangerment, a misdemeanor, after he laid planks with protruding nail-tips in puddles along the trails on his property. That charge is pending.
Ferran said he's tried everything from reasoning with trespassers to putting up signs, digging holes, felling trees and dumping rocks. Nothing has kept off-roaders from riding through his land, which happens to be a link to hundreds of miles of trails that wind through several states.
He said he's been trying to "educate'' ATV riders as to his right to demand they take off their masks and be photographed. But trespassers don't appear to be getting the lesson.
"I was punched last time I physically arrested someone on my property,'' he said.
One ATV advocate said he thought Ferran was behaving dangerously.
"I think shooting at people and citizen's arrests are extremely harmful to the safety of society,'' said Alex Ernst, spokesman for the New York State Off-Highway Recreational Vehicle Association. "It puts the landowner in grave danger.''
Ernst said he's been working with the state Legislature to try and get money to establish ATV trails, like the huge network that exists for snowmobiles in New York. He said such a selection might encourage more ATV owners to register their vehicles and obey state laws. He also encourages the state to give money to local police to buy ATVs for patrolling the woods.
There are an estimated 250,000 ATVs in New York, about 30 percent of which are registered. The state has more than 75 clubs, but many users prefer to ride on their own.
Ernst said he and officials from other motorized-vehicle recreation groups have given up trying to deal with Ferran.
"Here's a landowner who's got an understandable problem. He's at his wit's end, there's no doubt about it,'' Ernst said. But "he's taking this way beyond even my level of obsession.''
You may have received a copy of this Ferran e-mail, and it seems he is at it again spamming the Club's email addresses as posted on the Clublist.htm page, so I wanted to remind all of you not to react or respond to this fellow as you are only asking for trouble. I fear that this guy is really hoping he will have the opportunity to shoot a rider someday based on the NYS laws he cites, and it has been suggested that he is practicing Law without a license to do so by sending around this "legal advice."
Again, just delete and ignore when you receive from Mark Ferran. Resist the urge to reply.
An article published this morning in Albany following the saga about Ferran is located at http://www.timesunion.com/AspStories/story.asp?storyKey=83394&category=C
Alex Ernst
>From:
>To:
>Subject: Subj: NOTICE TO ATV-RIDERS and their PARENTS Please give serious consideratio
>Date: Wed, 22 May 2002 16:31:30 EDT
>
>Subj: NOTICE TO ATV-RIDERS and their PARENTS
>
> Please give serious consideration to forwarding or posting the following
>Notice to all persons who ride, or who allow their children to ride ATVs in
>the State of New York. All ATV-riders (and parents) should be aware of this.
> Thousands of farmers and other landowners in NY aware of it. The conflict
>now existing between landowners and ATV-trespassers has reached a greater
>magnitude than that of the Historic conflict between the barbed-wire farmers
>and the free-range cattlemen of the old west (See, musical Oklahoma). The
>dynamics are the same, the laws are the same, and the stakes are the same.
>We should all proceed under a common understanding of rules of engagement, so
>no-one misunderstands what is going on during personal encounters between
>trespasers and landowners (and so would-be trespassers learn to avoid them
>altogether), so that no-one has to suffer serious physical injury, as has
>occurred in other states.
>
>NOTICE TO ATV-RIDERS
>and their
>PARENTS
>It is important that parents who allow their children to operate ATVs shall
>know and explain the Law to them.
>"To operate an ATV on private land, you must have permission of the land
>owner or lessee." http://www.nydmv.state.ny.us/broch/c29.htm
> Every landowner in New York State has the legal right to stop and to ARREST
>any person who operates an ATV on private land without the owner's consent,
>regardless of whether the private land is "posted" or not! Vehicle & Traffic
>Law § 2403(3); VTL § 155; Penal Law 10.00(2); CPL § 140:30(1)(b). (A
>landowner may also arrest a person Hunting without permission on POSTED
>land.) "Criminal Procedure Law §§ 140.10, 140.25 and 140.30 provide broad
>authority for police officers, peace officers and "any person," respectively,
>to make arrests without warrants in defined circumstances. " NY Attorney
>General Opinion http://www.oag.state.ny.us/lawyers/opinions/2000_1.html
>A landowner has MORE authority than a Police Officer to ENTER his POSTED land
>and to ARREST a trespassing ATV-rider, hunter, or other trespasser found
>thereon . http://www.law.cornell.edu/ny/ctap/079_0474.htm Cf. PL s.
>140.15(4).
> Criminal Procedure Law section 140.35 ordains that: "1. A person
>[e.g., landowner] may arrest another person for an offense pursuant to
>section 140.30 at any hour of any day or night. 2. Such person must inform
>the person whom he is arresting of the reason for such arrest unless he
>encounters physical resistance, flight or other factors rendering such
>procedure impractical. 3. In order to effect such an arrest, such person may
>use such physical force as is justifiable pursuant to subdivision four of
>section 35.30 of the penal law. http://assembly.state.ny.us/leg/?cl=25&a=22
> Penal Law sec. 35.30(4) ordains: "A private person acting on his own
>account may use physical force, other than deadly physical force, upon
>another person when and to the extent that he reasonably believes such to be
>necessary to effect an arrest or to prevent the escape from custody of a
>person whom he reasonably believes to have committed an offense and who in
>fact has committed such offense; and he may use deadly physical force for
>such purpose when he reasonably believes such to be necessary to:(a) Defend
>himself or a third person from what he reasonably believes to be the use or
>imminent use of deadly physical force."
> This Means: A landowner may stop and arrest a trespasser by displaying a
>rifle, shotgun, or other deadly weapon.
>http://www.prairielaw.com/articles/article.asp?channelId=8&articleId=1329 See
>also http://www.courts.state.me.us/01me91gl.pdf "The right of a law
>enforcement officer [or a private citizen] to make an arrest necessarily
>carries with it the right to use some degree of physical coercion or threat
>thereof to effect it." Frazell v. Flanigan, 102 F.3d 877 (7th Cir. 1996),
>quoting Graham v. Connor, 490 U.S. 386, 396 (1989).
>"Private citizens arresting trespassers on their property can use any means
>'up to and including the threat of deadly force, but not the use of deadly
>force' [to prevent the escape from custody]."
>http://www.counterpunch.org/pipermail/counterpunch-list/2000-May/000341.html
> However: If an ATV-rider or other person attempts to run-over or
>otherwise attack the landowner while he is effecting an arrest, the landowner
>has NO DUTY TO RETREAT (PL 35.10(6), and may lawfully "use deadly physical
>force" (e.g., shoot to maim or kill) if "he reasonably believes such to be
>necessary to defend himself" from such a vehicular assault or other deadly
>assault. (PL 35.30(4)) A trespasser duly arrested by a landowner has NO
>LEGAL RIGHT TO RESIST THE ARREST NOR TO ESCAPE CUSTODY, and has only the
>right to be "delivered" promptly "to the custody of an appropriate police
>officer." CPL 140.40 The Police Officer will "notify the parent" CPL
>140.40(5), and may arrest the parent- as "owner of the ATV" operated without
>liability insurance. VTL-2407(4). The police officer "must bring him, on
>behalf of the arresting person, before an appropriate local criminal court"
>or "may issue and serve an appearance ticket upon the arrested person and
>release him from custody." CPL 140.40.
>NYS Trooper Richard A. Bango (Brunswick, NY Barracks) stated that a landowner
>may effectively arrest an ATV-rider by seizing the ATV-rider's ID (e.g.,
>Driver's License) and seeing and/or photographing his face. If a masked
>ATV-rider resists arrest by refusing to remove his helmet and be
>photographed, the helmet can be forcibly removed from him, and/or he may be
>hand-cuffed and "delivered," with the aid of pepper-spray or other necessary
>"physical force." 35.30(4). Penal Law sections 35.30(4), 35.10(6) and 265.20
>specifically provide that a landowner is authorized to "use" "tear gas,
>pepper [spray] or similar disabling agent" upon a trespasser if necessary "in
>defense of himself ..., or in defense of premises [i.e., land], or ... in
>order to effect an arrest or prevent an escape from custody." (PL sec.
>35.10(6)). http://assembly.state.ny.us/leg/?cl=82&a=68
>http://assembly.state.ny.us/leg/?cl=82&a=12 . Penal Law section 35.05, CPL
>Article 140 and People v. Kane (142 N.Y. 366, 37 N.E. 104 and 131 N.Y. 111)
>prescribe that a landowner is also "authorized by law" to "destroy" the
>"instrument of trespass," (e.g., damage the trespassing ATV) either to simply
>"prevent or terminate" the trespass, or to facilitate arrest, or to prevent
>"physical resistance, flight" or "to prevent the escape from custody."
>WARNING: An ATV-rider's failure to promptly and peacefully comply with a
>landowner's directions to STOP, TURN OFF the ATV's ENGINE, reveal his face,
>and produce ID, and/or be "delivered" to the police, may necessitate a lawful
>use of physical force by the landowner, including but not limited to use of
>Tear Gas, Pepper Spray, and Hand-Cuffs upon the operator, and/or the use of
>vehicle-disabling (e.g., tire-deflating or engine-destroying) tools.
>Respect the Law.
>http://www.givemeliberty.org/spotlights/archive/March1999/markferran.htm
>
>For further information about ATV trespass and Citizen's Arrest, see:
>http://www.municipalworld.com/discuss/messages/7384.htm
>
>The author of this Notice is a NY Forest Landowner who practices what he
>preaches in Rensselaer County, NY, and can be contacted by email at
>
>Mark Ferran BSEE scl JD mcl
Note: I (hopefully) deleted all e-mail addresses referenced below to prevent adding more fuel to an already volatile situation.
---Woods
Stakes raised in ATV fight
Grafton-- Landowner Mark Ferran wants riders to stay off his property
By ALAN WECHSLER, Staff writer
First published: Thursday, May 23, 2002
This week Mark Ferran laid down the law. Specifically, he taped it up at Town Hall, the local library and the general store.
What he posted on Tuesday were notices to local all-terrain vehicle users and their parents, listing various state laws that permit the use of physical force to prevent people from escaping from the custody of a citizen's arrest.
Ferran, now in his seventh year of trying to keep ATV riders off his 300 acres of woods, is trying a new tactic: a disposable camera in one hand, a can of pepper spray in the other. He said he intends to photograph the face of everyone he catches riding through his land.
And the pepper spray? Ferran, who said he has been physically threatened over the years, maintains that it's now only for protection. But he also said he may have to start using the spray if riders refuse to take off their face masks and helmets and submit to having their pictures taken.
"I just wanted to let them know the rules of engagement,'' he said, "because they seem to keep wanting to come back for more.''
The problem of ATV use on private property is common in rural areas around the state, although many landowners do not object to ATVs riding through their woods. Ferran, 32, an unemployed law-school graduate who lives in Albany, takes the situation more seriously than most.
His family has owned the Grafton land for 30 years. He was arrested in 2000 for shooting out, with a shotgun, the front tire of an aggressive ATV rider. The charge was dismissed, but last summer he was arrested again and charged with reckless endangerment, a misdemeanor, after he laid planks with protruding nail-tips in puddles along the trails on his property. That charge is pending.
Ferran said he's tried everything from reasoning with trespassers to putting up signs, digging holes, felling trees and dumping rocks. Nothing has kept off-roaders from riding through his land, which happens to be a link to hundreds of miles of trails that wind through several states.
He said he's been trying to "educate'' ATV riders as to his right to demand they take off their masks and be photographed. But trespassers don't appear to be getting the lesson.
"I was punched last time I physically arrested someone on my property,'' he said.
One ATV advocate said he thought Ferran was behaving dangerously.
"I think shooting at people and citizen's arrests are extremely harmful to the safety of society,'' said Alex Ernst, spokesman for the New York State Off-Highway Recreational Vehicle Association. "It puts the landowner in grave danger.''
Ernst said he's been working with the state Legislature to try and get money to establish ATV trails, like the huge network that exists for snowmobiles in New York. He said such a selection might encourage more ATV owners to register their vehicles and obey state laws. He also encourages the state to give money to local police to buy ATVs for patrolling the woods.
There are an estimated 250,000 ATVs in New York, about 30 percent of which are registered. The state has more than 75 clubs, but many users prefer to ride on their own.
Ernst said he and officials from other motorized-vehicle recreation groups have given up trying to deal with Ferran.
"Here's a landowner who's got an understandable problem. He's at his wit's end, there's no doubt about it,'' Ernst said. But "he's taking this way beyond even my level of obsession.''
You may have received a copy of this Ferran e-mail, and it seems he is at it again spamming the Club's email addresses as posted on the Clublist.htm page, so I wanted to remind all of you not to react or respond to this fellow as you are only asking for trouble. I fear that this guy is really hoping he will have the opportunity to shoot a rider someday based on the NYS laws he cites, and it has been suggested that he is practicing Law without a license to do so by sending around this "legal advice."
Again, just delete and ignore when you receive from Mark Ferran. Resist the urge to reply.
An article published this morning in Albany following the saga about Ferran is located at http://www.timesunion.com/AspStories/story.asp?storyKey=83394&category=C
Alex Ernst
>From:
>To:
>Subject: Subj: NOTICE TO ATV-RIDERS and their PARENTS Please give serious consideratio
>Date: Wed, 22 May 2002 16:31:30 EDT
>
>Subj: NOTICE TO ATV-RIDERS and their PARENTS
>
> Please give serious consideration to forwarding or posting the following
>Notice to all persons who ride, or who allow their children to ride ATVs in
>the State of New York. All ATV-riders (and parents) should be aware of this.
> Thousands of farmers and other landowners in NY aware of it. The conflict
>now existing between landowners and ATV-trespassers has reached a greater
>magnitude than that of the Historic conflict between the barbed-wire farmers
>and the free-range cattlemen of the old west (See, musical Oklahoma). The
>dynamics are the same, the laws are the same, and the stakes are the same.
>We should all proceed under a common understanding of rules of engagement, so
>no-one misunderstands what is going on during personal encounters between
>trespasers and landowners (and so would-be trespassers learn to avoid them
>altogether), so that no-one has to suffer serious physical injury, as has
>occurred in other states.
>
>NOTICE TO ATV-RIDERS
>and their
>PARENTS
>It is important that parents who allow their children to operate ATVs shall
>know and explain the Law to them.
>"To operate an ATV on private land, you must have permission of the land
>owner or lessee." http://www.nydmv.state.ny.us/broch/c29.htm
> Every landowner in New York State has the legal right to stop and to ARREST
>any person who operates an ATV on private land without the owner's consent,
>regardless of whether the private land is "posted" or not! Vehicle & Traffic
>Law § 2403(3); VTL § 155; Penal Law 10.00(2); CPL § 140:30(1)(b). (A
>landowner may also arrest a person Hunting without permission on POSTED
>land.) "Criminal Procedure Law §§ 140.10, 140.25 and 140.30 provide broad
>authority for police officers, peace officers and "any person," respectively,
>to make arrests without warrants in defined circumstances. " NY Attorney
>General Opinion http://www.oag.state.ny.us/lawyers/opinions/2000_1.html
>A landowner has MORE authority than a Police Officer to ENTER his POSTED land
>and to ARREST a trespassing ATV-rider, hunter, or other trespasser found
>thereon . http://www.law.cornell.edu/ny/ctap/079_0474.htm Cf. PL s.
>140.15(4).
> Criminal Procedure Law section 140.35 ordains that: "1. A person
>[e.g., landowner] may arrest another person for an offense pursuant to
>section 140.30 at any hour of any day or night. 2. Such person must inform
>the person whom he is arresting of the reason for such arrest unless he
>encounters physical resistance, flight or other factors rendering such
>procedure impractical. 3. In order to effect such an arrest, such person may
>use such physical force as is justifiable pursuant to subdivision four of
>section 35.30 of the penal law. http://assembly.state.ny.us/leg/?cl=25&a=22
> Penal Law sec. 35.30(4) ordains: "A private person acting on his own
>account may use physical force, other than deadly physical force, upon
>another person when and to the extent that he reasonably believes such to be
>necessary to effect an arrest or to prevent the escape from custody of a
>person whom he reasonably believes to have committed an offense and who in
>fact has committed such offense; and he may use deadly physical force for
>such purpose when he reasonably believes such to be necessary to:(a) Defend
>himself or a third person from what he reasonably believes to be the use or
>imminent use of deadly physical force."
> This Means: A landowner may stop and arrest a trespasser by displaying a
>rifle, shotgun, or other deadly weapon.
>http://www.prairielaw.com/articles/article.asp?channelId=8&articleId=1329 See
>also http://www.courts.state.me.us/01me91gl.pdf "The right of a law
>enforcement officer [or a private citizen] to make an arrest necessarily
>carries with it the right to use some degree of physical coercion or threat
>thereof to effect it." Frazell v. Flanigan, 102 F.3d 877 (7th Cir. 1996),
>quoting Graham v. Connor, 490 U.S. 386, 396 (1989).
>"Private citizens arresting trespassers on their property can use any means
>'up to and including the threat of deadly force, but not the use of deadly
>force' [to prevent the escape from custody]."
>http://www.counterpunch.org/pipermail/counterpunch-list/2000-May/000341.html
> However: If an ATV-rider or other person attempts to run-over or
>otherwise attack the landowner while he is effecting an arrest, the landowner
>has NO DUTY TO RETREAT (PL 35.10(6), and may lawfully "use deadly physical
>force" (e.g., shoot to maim or kill) if "he reasonably believes such to be
>necessary to defend himself" from such a vehicular assault or other deadly
>assault. (PL 35.30(4)) A trespasser duly arrested by a landowner has NO
>LEGAL RIGHT TO RESIST THE ARREST NOR TO ESCAPE CUSTODY, and has only the
>right to be "delivered" promptly "to the custody of an appropriate police
>officer." CPL 140.40 The Police Officer will "notify the parent" CPL
>140.40(5), and may arrest the parent- as "owner of the ATV" operated without
>liability insurance. VTL-2407(4). The police officer "must bring him, on
>behalf of the arresting person, before an appropriate local criminal court"
>or "may issue and serve an appearance ticket upon the arrested person and
>release him from custody." CPL 140.40.
>NYS Trooper Richard A. Bango (Brunswick, NY Barracks) stated that a landowner
>may effectively arrest an ATV-rider by seizing the ATV-rider's ID (e.g.,
>Driver's License) and seeing and/or photographing his face. If a masked
>ATV-rider resists arrest by refusing to remove his helmet and be
>photographed, the helmet can be forcibly removed from him, and/or he may be
>hand-cuffed and "delivered," with the aid of pepper-spray or other necessary
>"physical force." 35.30(4). Penal Law sections 35.30(4), 35.10(6) and 265.20
>specifically provide that a landowner is authorized to "use" "tear gas,
>pepper [spray] or similar disabling agent" upon a trespasser if necessary "in
>defense of himself ..., or in defense of premises [i.e., land], or ... in
>order to effect an arrest or prevent an escape from custody." (PL sec.
>35.10(6)). http://assembly.state.ny.us/leg/?cl=82&a=68
>http://assembly.state.ny.us/leg/?cl=82&a=12 . Penal Law section 35.05, CPL
>Article 140 and People v. Kane (142 N.Y. 366, 37 N.E. 104 and 131 N.Y. 111)
>prescribe that a landowner is also "authorized by law" to "destroy" the
>"instrument of trespass," (e.g., damage the trespassing ATV) either to simply
>"prevent or terminate" the trespass, or to facilitate arrest, or to prevent
>"physical resistance, flight" or "to prevent the escape from custody."
>WARNING: An ATV-rider's failure to promptly and peacefully comply with a
>landowner's directions to STOP, TURN OFF the ATV's ENGINE, reveal his face,
>and produce ID, and/or be "delivered" to the police, may necessitate a lawful
>use of physical force by the landowner, including but not limited to use of
>Tear Gas, Pepper Spray, and Hand-Cuffs upon the operator, and/or the use of
>vehicle-disabling (e.g., tire-deflating or engine-destroying) tools.
>Respect the Law.
>http://www.givemeliberty.org/spotlights/archive/March1999/markferran.htm
>
>For further information about ATV trespass and Citizen's Arrest, see:
>http://www.municipalworld.com/discuss/messages/7384.htm
>
>The author of this Notice is a NY Forest Landowner who practices what he
>preaches in Rensselaer County, NY, and can be contacted by email at
>
>Mark Ferran BSEE scl JD mcl
