There is no “Pokemon Go” Defense to Trespassing in Virginia

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by | July 27, 2016

The recent release of the game “Pokemon GO” has gotten literally millions of people out of their homes and out into public chasing elusive virtual monsters. The game is played using a smartphone and GPS. It generates “Pokemon” (Japanese for “Pocket Monsters”) that can be caught if you travel to their position. Yes, it’s a video game you “play” by traveling to various locations throughout the real world. Judging by the numbers alone, the game is, quite obviously, a big hit. I think that at the very least it’s great to see all these people out and about.

But despite this, there have already been some strange incidents associated with the game. The game can take its players to locations that, while not necessarily “remote”, are still less traveled. There have been incidents of players stumbling across dead bodies; other players report having been robbed while playing the game; and one Canadian lady got so tired of seeing a throng of Pokemon Go players outside her apartment building that she climbed onto her roof and shot at them with a pellet gun.

Given the fact that the game takes players out into public and all around chasing Pokemon, I’m somewhat surprised that I have seen very little coverage about trespassing charges related to Pokemon GO. In Virginia, trespass to realty is a Class 1 Misdemeanor punishable by confinement in jail for not more than twelve months and a fine of not more than $2500.00, either or both. Although trespassing may seem harmless, it is a criminal charge in Virginia.

The Virginia law generally makes it illegal to enter the premises of another after having been forbidden from doing so. Typically this would come in the form of actually being told not to enter the premises (verbally or in writing) or through the posting of no trespassing signs. Pokemon Go players (and anyone really) need to pay special attention to whether they have been told to stay off a particular piece of property or whether there have been posted “No Trespassing” signs around the property posted at “places where . . . they may reasonably be seen.”

Even if there were reasonably posted signs or a verbal warning to stay off of certain premises, however, there are potential defenses to trespassing charges. For example, because the law requires that a person intentionally “go upon” the premises in question a person who got lost and wandered onto property by accident probably would not be guilty of trespassing.

Still, to my knowledge, there has not yet been a case where a trespassing defendant has asserted that he did not intentionally trespass onto property because he was too busy playing Pokemon GO on his smart phone to realize where he was. My guess is that such a defense would be fairly useless given the fact that playing the game requires you to essentially monitor your position in the world via GPS. Nonetheless, in light of the immense popularity of the game, perhaps we’ll have an initial court ruling on the issue in the near future.