Trespass conviction overturned for man banned from government building

A trespassing conviction has been vacated for a man who was banned from the Evansville government complex, with the Indiana Court of Appeals addressing first-impression issues of whether outright bans from public buildings are permissible.

In David Kifer v. State of Indiana, 19A-CR-1188, David Kifer was informed via letter in March 2005 that he was no longer allowed in the county’s Civic Center Complex. The building included the police department, so when Kifer was sentenced on an unrelated charge in 2019, he was advised to contact the sheriff’s office in advance if he needed to enter the building.

One month later, Kifer arrived at the complex wanting to file a police report about his wife threatening him with knives. Two officers working at the building’s entrance knew of Kifer’s ban from the building, but they did not ask him to leave. Instead, after Kifer reported the alleged crime, he was arrested.

Kifer was then charged with and convicted of Level 6 felony criminal trespass and was sentenced to two years in the Indiana Department of Correction. But in overturning his conviction, Judge Patricia Riley wrote Wednesday that the state did not prove the existence of an agency relationship.

Specifically, Riley pointed to the testimony of David Rector, the general manager for the Evansville Vanderburgh County Building Authority who sent Kifer the letter banning him from the civic complex. The court likened this to the case of Glispie v. State, 955 N.E.2d 819, 821 (Ind. Ct. App. 20110), reh’g denied.

“(Rector) banned Kifer after being ‘notified by judicial officers, law enforcement officials, elected department heads,’” Riley wrote. “However, as Rector is the general manager employed by the Building Authority, he is not the agent of judicial officers, law enforcement officials, or elected department heads and therefore cannot derive his authority from them. … Accordingly, the State did not carry its burden of proof.”

The COA also addressed an issue of first impression raised by Kifer – whether an agent can ban a person “forever and permanently from a public building.” It looked to out-of-state precedent from Louisiana and Alaska in the cases of State v. Johnson, 381 So.2d 498 (La. 1980) and Turney v. State, 922 P.2d 283 (Ak. Ct. App. 1996), for guidance.

Answering that question in a footnote, Riley wrote that the court “does not decide that an individual cannot be banned from a public building; rather, we conclude that this decision has to be communicated by the proper authorized person and cannot be in place permanently without anything more. We decline to address whether a permanent ban can be in place with the specification that access to the building is possible upon advance notice or by request for an escort at the entrance.”

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