Fauci, the Fifth, and the Pardon: Can He Have His Cake and Eat It Too?

As many of you in Blog-land may recall, at the end of President Biden’s term, Dr. Anthony Fauci received a pardon for any federal crimes he may have committed during the covered period (2020-2025). 

After a diary attributed to Fauci reportedly came to light, questions arose about whether it showed evidence of wrongdoing or whether he may have provided inaccurate testimony to Congress. 

When Fauci later appeared before Congress and invoked the Fifth Amendment, several legal questions emerged: What protections does the Fifth Amendment provide, does a pardon eliminate the right to remain silent, and can someone still be accused of lying to Congress if they have already received a pardon?

This is actually an interesting constitutional problem (if you're into these sorts of things) because it sits at the intersection of executive pardons, the Fifth Amendment privilege against self-incrimination, congressional oversight, and perjury statutes. 

There are also some factual premises in our hypothetical that need to be separated from the legal analysis: whether a particular diary exists, what it says, whether it proves a crime, and whether a pardon covered particular conduct are factual questions. The legal principles, however, are fairly well established.

Let's walk through it. 

1. What is the Fifth Amendment, and what was it designed to protect?

As it relates to the issue at hand, the relevant language of the 5th Amendment is:

“No person … shall be compelled in any criminal case to be a witness against himself…”

This is the "self-Incrimination clause" of the Fifth Amendment.  The historical purpose was to prevent the government from using coercive interrogation practices to force people to convict themselves. 

The Framers were reacting in part to practices in England where religious and political suspects could be compelled to answer accusatory questions under oath, even when those answers would lead to punishment.

The basic idea here is that the government has the burden of proving guilt. It cannot force the accused to help build the case against himself.  The Supreme Court has repeatedly emphasized that the privilege protects human dignity, autonomy, and the accusatorial nature of our criminal justice system.

I'd like to point your attention to a few major cases as they relate to this issue:

Miranda v. Arizona, 384, U.S. 436 (1966)

This is the famous "you have the right to remain silent" case.  The SCOTUS held that custodial interrogation requires warnings because people must be aware of their Fifth Amendment rights.

The important point here is that Miranda is only one application of the Fifth Amendment. The underlying privilege is much broader. 

Griffin v. California, 380 U.S. 609 (1965)

The SCOTUS held that prosecutors cannot tell a jury: "The defendant didn't testify, so that proves guilt."

Consequently, the government cannot penalize someone for exercising the privilege. 

Kastigar v. United States, 406 U.S. 441 (1972)

This is probably the most relevant case to our 2nd question.

In Kastigar, the SCOTUS held that a person may be forced to testify if they receive immunity that is at least as broad as the Fifth Amendment protection.

In other words:

• The Fifth Amendment protects against being forced to incriminate yourself.
• If the government removes the possibility of prosecution, the reason for the privilege disappears.
• Therefore, immunity can replace the privilege.

That becomes important with pardons. 

The case law about immunity is important because a pardon functions in a similar way to immunity when analyzing the Fifth Amendment.

Let's unpack that.

The Fifth Amendment says:  A person cannot be forced to testify if the testimony could be used to incriminate them.

The key word here is "could."  The person does not have to prove they will be prosecuted. They only have to show a reasonable possibility that their answers could expose them to criminal liability.

For example, if Congress asks "Did you knowingly falsify documents?"

...and the witness responds, "If I answer yes, the government could prosecute me for that."

...then the Fifth Amendment applies.

But now let's change the facts.  The president grants that person a valid pardon covering that exact conduct.  Now the witness says, "If I answer yes, the government could prosecute me."

The government responds, "No, it cannot. You have already been pardoned."

That is where Kastigar v. United States becomes important.

The principle from Kastigar is that the Fifth Amendment exists because testimony can lead to criminal punishment.  If the government removes the possibility of criminal punishment through immunity, the person can be compelled to testify.  As such, a pardon can serve a similar function because it removes criminal exposure for the pardoned conduct.

So the logical chain is:

1. Fifth Amendment protects against self-incrimination;
2. Self-incrimination requires possible criminal consequences;
3. Pardon removes criminal consequences;
4. Fifth Amendment privilege may disappear.

2. If someone receives a pardon, can they still invoke the Fifth Amendment?

This is where it gets interesting and the short answer is usually, no.  A valid pardon generally removes the Fifth Amendment privilege for the crimes covered by the pardon.

Why?

Because the Fifth Amendment protects against being forced to provide evidence that could later be used to prosecute you.

But if you cannot legally be prosecuted for that conduct, there is no criminal exposure.

The Supreme Court addressed this in Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52 (1964).

The SCOTUS explained the rationale behind the privilege: it exists because compelled testimony could expose a person to criminal liability.  Remove the possibility of prosecution and the privilege generally disappears.

A pardon operates similarly to immunity. 

A classic example of this can be found in Burdick v. United States, 236 U.S. 79 (1915).

This case involved a newspaper editor who refused to accept a pardon.  The SCOTUS recognized something important: A pardon is not simply a gift; it carries an implication that "you are forgiven because there was something to forgive."

That is why a pardon can have consequences beyond just wiping away punishment. 

But here is the catch:  A pardon only protects against the crimes covered by the pardon.  It does not create a magical shield against every possible question.  

For example, President Biden pardons Fauci for "Any federal offenses committed from 2020 through 2024 relating to COVID-19 policy."

That might eliminate prosecution for those crimes.  But if Congress asks "did you lie under oath during this hearing last month?"

That is a different question.  A pardon cannot cover a future crime that has not happened. 

The problem that exists is that if you look at the wording of many of Biden's pardons, they almost all refer to all or any related crimes suggesting that people are pardoned for things that did happen or may yet happen. So, how does this jive with our statement that: A pardon cannot cover a future crime that has not happened.

The short answer is that a president can issue a pardon that covers past conduct that has not yet been discovered, charged, or prosecuted, but a president cannot pardon a person for conduct that has not yet occurred.

The key difference is unknown past crimes versus future crimes.

When a pardon says something like "all offenses against the United States which the person may have committed or taken part in during a certain period," it does not mean anything this person might do in the future.  It means if this person committed a federal crime during the specified past period, whether we know about it today or not, that crime is forgiven.

The classic example is Richard Nixon. When Gerald Ford pardoned Nixon, the pardon covered:

"all offenses against the United States which he, Richard Nixon, has committed or may have committed..."

The purpose was to prevent a situation where prosecutors later discovered additional Watergate-related crimes and argued that those were not covered because they were not known at the time.

The Supreme Court has recognized that a pardon can cover offenses that are unknown at the time of issuance. In Ex parte Garland, 71 U.S. 333 (1866), the SCOTUS described the pardon power as extending to offenses already committed, whether known or unknown.

But there is a constitutional limit.  A president cannot say "I pardon John Smith for any crimes he commits in the next ten years."

Why? 

Because there is no "offense" yet.  A pardon forgives an act; it does not create advance immunity for future criminal behavior.

Think of it like this:

Valid:  "I pardon you for any federal crimes you committed between January 1, 2020 and January 1, 2025, whether known or unknown."

Not valid:  "I pardon you for any federal crimes you commit from January 1, 2026 onward."

The reason many modern pardons sound extremely broad is because lawyers drafting them are trying to capture the first category: unknown acts that already happened.

Where it gets complicated, and where our question about Fauci fits, is that a broad pardon can create a practical problem. 

Suppose a pardon covers "any federal offenses relating to COVID-19 policies, research, or responses between 2020 and 2025."

That might protect someone from prosecution for undiscovered crimes in that category. 

But then the next question becomes does that same pardon protect against a separate crime, such as lying under oath to Congress, if that lie occurred during the same period?   

That depends on the language of the pardon and how courts interpret whether the false statement itself is one of the "offenses" covered. 

3. Does a pardon eliminate the Fifth Amendment privilege entirely?

Short answer: No, and this is the subtle part.

A pardon removes Fifth Amendment protection only where the pardon eliminates criminal exposure.

Suppose Fauci was pardoned for:

• fraud related to COVID research
• false statements from 2020–2024
• conspiracy related to pandemic response

But Congress asks:  "Did you commit tax fraud in 2025?"

The pardon does nothing.  He could still invoke the Fifth.

The analysis is always could this answer expose me to criminal prosecution?

If yes → Fifth Amendment may apply.

If no → Fifth Amendment generally unavailable. 

4. Can Fauci still be accused of lying to Congress after  receiving a pardon?

Another short answer: Yes.

A pardon does not erase history and this is a common misunderstanding.

A pardon does not mean "The person did nothing wrong."  Rather, it means the government will not prosecute this person for covered offenses.

The SCOTUS made that clear in United States v. Wilson, 32 U.S. 150 (1833) when Chief Justice Marshall described a pardon as an act of forgiveness, not a declaration of innocence. 

So if Congress determines "You lied under oath," the pardon does not stop Congress from saying that.  Rather, the pardon mainly prevents criminal punishment for the pardoned offense. 

5. But can Fauci be prosecuted for lying to Congress if the underlying conduct was pardoned?

This is where the distinction gets important.

There are two separate crimes here.

Crime #1:  The underlying conduct.  Example:  "You hid information about a government program."

Crime #2:  The false testimony.  Example:  "You lied under oath when Congress asked about it."

Those are separate offenses.  A pardon for Crime #1 does not automatically pardon Crime #2 unless the pardon language covers it.

The SCOTUS has long recognized that a pardon must be interpreted according to its language.

A person cannot generally say "I was pardoned for stealing money, therefore I cannot be prosecuted for lying about stealing the money"...unless the pardon covers both. 

6. So does Fauci get to "have his cake and eat it too"?

The answer depends entirely on what the pardon actually covered.

The scenario describe above raises a legitimate constitutional tension:

• A pardon removes criminal exposure.
• Removing criminal exposure usually removes Fifth Amendment protection.
• Therefore, a person who has been fully pardoned generally cannot refuse to answer questions about the pardoned conduct.

Congress could potentially argue that a person cannot invoke the Fifth because they have already been protected from prosecution.  If Fauci refused anyway, Congress could consider contempt proceedings.

However, there is another wrinkle.  

A witness does not get to simply say I was pardoned, therefore I must answer.  The witness can still invoke the Fifth if answering could expose him to another crime not covered by the pardon.

Courts often resolve this through a process called a "Kastigar hearing," where the government must show that the testimony cannot be used against the witness.

In a Kastigar hearing:

• Government Proof: Prosecutors present evidence, case files, dates, and witness testimony showing how they found their proof before the defendant spoke, or through separate investigative work.
• Tracing Evidence: The government traces the timeline of its investigation to demonstrate zero contamination or "taint" from the immunized statements.
• Defense Challenge: The defense attorney cross-examines government agents and argues that certain evidence wouldn't exist without the protected statements.
• Judge's Decision: The judge decides if the prosecution met its high burden. If the state fails, the tainted evidence is thrown out, or the whole case may be dismissed.

So, the "upshot" of a Kastigar hearing is essentially: The government does not get to give you immunity with one hand and then use your compelled words against you with the other. If it wants your testimony, it must give you protection equivalent to the Fifth Amendment.

I guess the moral to this story is that the Fifth Amendment protects people from being forced to incriminate themselves, but a pardon may remove that danger by eliminating the possibility of prosecution for the pardoned conduct. 

The REAL question is whether Fauci's pardon was broad enough to cover everything Congress is asking about; if it was, refusing to answer in a Congressional hearing becomes much, much harder to justify.  

 

 

 

It's a National Sport in Some States

I've lived on the west coast, the east coast, up north, and down south in the great country that is America.

The one thing that I've found in most any state is that many (no, make that most) people who drive love to tailgate.  Heck in Utah, it's a national sport.

For reference sake, Tailgating = driving too close behind another vehicle without maintaining a safe stopping distance.  Most statutes define it as failing to leave sufficient space “so as to be able to stop safely without colliding.”

When I took driver training in high school many moons ago, "safe stopping distance" meant 2 car lengths or 2 seconds behind the car in front of you (whichever is greater).  Note, that's car lengths like about how long a typical sedan is - not how long a "smart" car is (which is, essentially, a roller skate).

However, according to the Federal Motor Carrier Safety Administration (FMCSA), National Highway Traffic Safety Administration (NHTSA), State Departments of Motor Vehicles (DMV), Department of Transportation (DOT), National Safety Council (NSC), and every single Insurance provider,  "safe stopping distance" equates to:

• The Three-Second Rule: This is the most common guideline for passenger vehicles in ideal conditions. You should count three seconds from the time the vehicle in front of you passes a fixed object (like a road sign) until your vehicle passes the same point.
• Expanded Rules: Driving experts recommend extending the following distance in certain situations:
• In poor weather (rain, snow): Increase your following distance to four to six seconds or more.
• At night or with low visibility: Leave extra space for your reaction time.
• With larger or heavier vehicles: Increase your following distance, as more weight increases the braking distance.
• On slippery surfaces (ice): Give yourself 10 times the normal braking distance

Essentially, "safe stopping distance is based on the road surface at the point and time you are driving your vehicle.

Maybe the reason people love to tailgate is because they don't know or realize what the danger is?  Tailgating is dangerous because:

• Reduced reaction time – You can’t stop fast enough if the car ahead brakes suddenly.

• Rear-end collisions – One of the most common types of crashes, is often caused by tailgating.

• Chain-reaction crashes – On highways, tailgating leads to multi-car pileups.

• Aggressive driving risk – Often linked with road rage, intimidation, or reckless driving.

I remember one time I was driving up the I-5 north just past the Tejon Pass and dropped into a swamp of fog 100 miles long up through the San Joaquin Valley (the bread basket of California).  I mean, you couldn't see 3 feet in front of you.  Cars were reduced from driving 55-100 MPH to a measly 3-5 mph.  

Well, most people.  

There was one idiot who was honking and hugging everyone's bumper like the fog was our fault.  We found him a couple miles up the road wrapped around the rear axle of a semi truck.

The thing is, tailgating is a crime in every state of the union.  For example:

California – Cal. Vehicle Code § 21703: Drivers “shall not follow another vehicle more closely than is reasonable and prudent.”

Texas – Tex. Transp. Code § 545.062: Must maintain “assured clear distance.”

New York – N.Y. Veh. & Traf. Law § 1129(a): Must not follow more closely than is “reasonable and prudent.”

Florida – Fla. Stat. § 316.0895: Prohibits following more closely than is reasonable.

Illinois – 625 ILCS 5/11-710: Cannot follow “more closely than is reasonable and prudent.”

Pennsylvania – 75 Pa. Cons. Stat. § 3310: Drivers shall not follow more closely than reasonable.

Ohio – Ohio Rev. Code § 4511.34: “Assured clear distance” and prohibits following too closely.

Michigan – Mich. Comp. Laws § 257.643: Must not follow closer than is “reasonable and prudent.”

Georgia – O.C.G.A. § 40-6-49: Following too closely prohibited.

Arizona – Ariz. Rev. Stat. § 28-730: Must not follow too closely for speed, traffic, and road conditions.

Washington – RCW 46.61.145: Drivers shall not follow “more closely than is reasonable and prudent.”

Colorado – Colo. Rev. Stat. § 42-4-1008: Prohibits following more closely than reasonable.

Virginia – Va. Code § 46.2-816: Following too closely prohibited.

North Carolina – N.C. Gen. Stat. § 20-152: Prohibits following more closely than is reasonable and prudent.

Massachusetts – Mass. Gen. Laws ch. 90, § 14B: Must not follow more closely than is reasonable. 

Utah - Utah Code, Title 41 § 41-6a-711 (Following too closely): The operator of a vehicle may not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles, the traffic upon, and the condition of the highway. 

Wait, what does "reasonable and prudent" mean?  The phrase “reasonable and prudent” is the key standard in almost every state’s tailgating statute. It’s intentionally flexible, because lawmakers can’t write a one-size-fits-all “exact number of feet” that works at every speed and in every road condition.

Like I said up above, when a statute says you must not follow more closely than is “reasonable and prudent”, it means:

• You must leave enough space to stop safely if the car ahead slows or stops suddenly.

• The space must adjust based on:

  • Speed (faster = more stopping distance)

  • Traffic density (congested traffic = more caution)

  • Road conditions (wet, icy, or gravel roads require more distance)

  • Vehicle size/weight (trucks need more braking distance than cars)

Legislatures avoid setting a specific distance (like “100 feet”) because safe following distance changes constantly. Instead, “reasonable and prudent” makes it a case-by-case standard, enforced by officers, judges, and juries.

Got that?  It's to the cops discretion whether you were tailgating.

So, if the cop says you were driving too close, you probably were.  Don't argue the issue because you'll just wind up in cuffs with a resisting arrest charge tacked on for your efforts.  

Just sign the ticket and move along. 

So, how have courts viewed tailgating?  Turns out, not well for the tailgater.

Bexar County, Texas – Manslaughter from Tailgating and Reckless Driving (2025)

• A jury convicted a driver for manslaughter following a fatal motorcycle crash near San Antonio, centered on tailgating, speeding, and passing in a no-passing zone. The defendant received a 10-year sentence, plus a concurrent 3-year term for carrying a weapon.

• Relevance: Demonstrates how tailgating combined with other dangerous behaviors can elevate charges to serious crimes—even unintentionally causing death.

Roux v. Coffey, Docket #AC46898 (2025)

• Case summary: A Connecticut appellate court ruled in January 2025 that Live Nation, the concert promoter, was not liable for the death of a 17-year-old, Luke Roux, who was killed by a driver (Jacob Coffey) who had tailgated outside the Xfinity Theater after drinking and then ran a red light. The court determined that property owners don’t generally bear liability for individuals who consume alcohol on their property and later drive and cause harm.

• Significance: The case underscores legal boundaries on premises liability when alcohol and tailgating precede a DUI crash.

Fassett v. Santiam Loggers, Inc., 267 Or. 505, 517 P.2d 1059 (1973) – Truck rear-ended a car after following too closely. Court held that violation of Oregon’s tailgating statute constituted negligence per se, making the trucking company liable.

Harris v. Harman, 253 Va. 336, 486 S.E.2d 99 (1997)

• Court: Virginia Supreme Court

• Issue: Whether tailgating contributed to the plaintiff's accident.

• Outcome: The court found that Harris had been tailgating Harman for a considerable period, which distracted Harman. The jury had to determine if this tailgating was the cause of the accident. This case highlights how tailgating can be a factor in determining negligence.

Garnot v. Johnson, 239 Va. 81, 387 S.E.2d 473 (1990)

• Court: Virginia Supreme Court

• Issue: Whether the rear driver's tailgating was the proximate cause of the rear-end collision.

• Outcome: The court concluded that the plaintiff was entitled to an instruction on following too closely, emphasizing the rear driver's responsibility in maintaining a safe distance.

Meeks v. Hodges, 226 Va. 106, 306 S.E.2d 879 (1983)

• Court: Virginia Supreme Court

• Issue: Whether the rear driver was following too closely, leading to the accident.

• Outcome: The court found that there was a jury question as to whether the rear driver was following too closely, which contributed to the accident.

Bottom line:  Slow down, back off and pay attention to the conditions of the road.  If you think you're too close or the driver in front of you suddenly taps their breaks and you're having to smash the brakes to avoid an accident, you probably are too close.  

 

So, back the @#%# off my bumper!

 

 

Word of the Month for July 2026: SOLICITATION

Picture it.

You've scrimped and saved and bought your little slice of heaven to call home nestled in the smoky mountains or maybe in somewhere in South Carolina or maybe it was Texas or Montana or...oh, heck, it's my story so South Carolina it is (it's paradise).

Anyway, what you really DON'T want is someone coming to disturb your little slice of heaven so you put up "NO SOLICITATION" or "NO TRESPASSING" signs on your property.

Of course, like mosquitos to a southern BBQ, in less time than you can say Jiminy Cricket you have two dozen solicitors at your door.  Before we get too far into this post, let's define what we're talking about.

SOLICITATION generally refers to the act of requesting, enticing, or attempting to obtain something from someone. The term is heavily context-dependent and falls into three primary categories: daily/business requests, criminal law, and sexual offenses.

In the legal context, solicitation is a specific inchoate crime where someone encourages, commands, or pays another person to commit a crime, even if the crime itself is never ultimately carried out.

• Example: Hiring or asking someone to commit murder, or paying an undercover officer to perform illegal acts.

In the corporate and governmental sectors, a "solicitation" is an official document (such as a Request for Proposal) distributed by an organization seeking bids from vendors to complete a specific project or provide services.

In everyday contexts, solicitation is the act of asking for money, donations, support, or business. 

• Example: Door-to-door fundraising for a local cause, telemarketing calls offering a service, or a charity sending mail asking for a financial donation.

Yep, that's the one.  I mean, how annoying is it when, even after you post all those NO SOLICITATION or NO TRESPASSING signs that you now have a pestiferous wretch who banging on your door disturbing your peace and tranquility!  

Dang but some peoples kids, right?!? 

As it relates to commercial or business related solicitation, what we're looking at is:

• Pest control salesman
• Roofing company
• Solar panel salesperson
• Security system salesperson

Commercial solicitation receives less constitutional protection than say non-Commercial Canvassing which might include:

• Political campaigns
• Religious evangelism
• Petition circulators
• Advocacy groups

These activities receive greater First Amendment protection, although homeowners still have substantial rights to exclude them from their property.

So, does ringing a doorbell normally constitute trespassing?

Short answer, no (generally).

American property law recognizes an "implied license" allowing ordinary visitors to walk up the driveway, approach the front door, knock or ring once, or attempt a brief contact.

This implied invitation applies to:

• Neighbors
• Delivery drivers
• Police conducting a "knock and talk"
• Salespeople
• Religious canvassers

That's why simply walking to a front door is ordinarily not trespassing. 

So, what does a NO SOLICITING sign do?

A properly visible NO SOLICITING sign generally serves as notice that the implied invitation to enter my property for solicitation purposes has been revoked.  Or, in other words, without a NO SOLICITING sign:

• Solicitor walks up
• Rings bell
• Leaves
• Usually lawful

With a sign:

• Solicitor sees sign
• Approaches anyway
• Rings bell attempting to sell something

Now the solicitor has a much weaker claim that he was authorized to enter. Many courts treat this as evidence supporting trespass. 

OK, so what if the solicitor rings repeatedly and refuses to stop?

Yeah, now you're entering a different territory.  See, our hypothetical wasn't "Solicitor rings once."  We moved on to "Person rings the ever living hell out of the doorbell and refuses to stop until someone answers."

That conduct may implicate:

Trespass

In the context of a person ringing a doorbell and refusing to stop, trespass (specifically criminal trespass) occurs when an individual remains on private property after being explicitly asked to leave or when their continued presence causes a resident to fear for their safety.

Because doorbells are designed for public use, walking up to a front door and ringing it once is typically permitted. However, this "implied license" to be on your property is instantly revoked if:

• You verbally tell the person to leave or stop ringing.
• The individual refuses to leave, or continues to ring the bell.
• The property is blocked by clear "No Trespassing" signs or secured gates

Because the person ignored posted notice, now they're staring down both barrels of the law.

Harassment

In some jurisdictions repeated unwanted conduct intended to annoy or alarm can constitute harassment.  In the case where a person repeatedly rings your doorbell and refuses to stop, the legal definition of harassment, as generally applied, occurs when the conduct is a knowing, willful, and repetitive.  It is a  "course of conduct" that serves no legitimate purpose. 

To cross the line from a nuisance into illegal harassment, the behavior must cause a "reasonable person" substantial emotional distress, intimidation, or alarm, and it must actually cause that distress to you.  Note, that's "you" as in your person.  Not the person across the street or around the corner - YOU must be distressed by the activity.

Disorderly Conduct

If the behavior is excessive enough, ringing a doorbell and refusing to stop generally falls under "disturbing the peace."  Legally, this action constitutes disorderly conduct if the person is making unreasonable noise, intentionally causing public or private annoyance, and continues the disruption after being clearly asked to stop.

Local Solicitation Ordinance Violations

Many cities require solicitors to:

• Have permits
• Respect no-soliciting signs
• Leave immediately when told

Violations can lead to citations or fines. 

As far as property rights go, Texas arguable has the strongest laws in place for property owners.

Under TEXAS Penal Code § 30.05, a person commits criminal trespass if they enter or remain on property after receiving notice that entry is forbidden or after being told to leave. The statute specifically recognizes posted signs as valid notice. 

 

The practical effect of Texas law is that if the homeowner says:  "Leave my property" and the solicitor remains, that is where criminal trespass becomes very clear under Texas law.

MINNESOTA generally requires either:

1. Posted notice against entry, or
2. A direct order to leave.

A salesperson who briefly walks to the front door will often argue they were acting under the normal implied license to approach a residence.  However, according to Minnesota statute § 609.605, entering or remaining on property after being told not to enter or after notice that entry is prohibited.

In NEBRASKA, Neb. Rev. Stat. § 28-521 (Second Degree Criminal Trespass) holds that a person commits trespass if:

"knowing that he or she is not licensed or privileged to do so, he or she enters or remains in any place as to which notice against trespass is given by:

(a) Actual communication;

(b) Posting reasonably likely to come to the attention of intruders; or

(c) Fencing or enclosure."

 So, in Nebraska, if it's posted, you hear someone say "LEAVE", or the house is fenced off, stay away.

In NEVADA specifically NRS § 207.200 makes it a misdemeanor to:

"willfully go or remain upon any land or in any building after having been warned ... not to trespass."

The statute also prohibits entering property:  "with intent to vex or annoy the owner or occupant."

That language becomes interesting when analyzing a solicitor who repeatedly rings a doorbell or refuses to leave.

CONNECTICUT divides criminal trespass into degrees:

• CGS § 53a-107 – Criminal Trespass 1st Degree
• CGS § 53a-108 – Criminal Trespass 2nd Degree
• CGS § 53a-109 – Criminal Trespass 3rd Degree

For a typical homeowner/solicitor situation, § 53a-109 (Criminal Trespass 3rd Degree) is the provision most likely implicated because it covers knowingly entering or remaining on premises without license or privilege.

What if you tell solicitors to leave and they refuse?  This is where trespass becomes strongest.  The classic trespass sequence is:

1. Person enters property

2. Owner tells person:  "Leave my property."

3. Person refuses

At that moment, in most jurisdictions, you've got a much clearer trespass situation and looking at the above noted jurisdictions, many criminal trespass statutes specifically require:

• Notice against entry; OR
• Notice to depart

and refusal to comply. 

So, in addition to have a NO SOLICITATION sign, does posting a NO TRESPASSING sign change things?

Again, short answer: Yes.  Yes, it does.

A NO TRESPASSING sign is generally broader.  Where a NO SOLICITING sign says "Don't come here to sell stuff," a NO TRESPASSING sign says "You don't have permission to enter my property."

The legal significance is usually greater because it addresses entry itself rather than merely the purpose of entry.

Several courts have discussed how "No Trespassing" signs can revoke the implied license normally allowing people to approach a residence. 

For example, in Brown v. State, 152 So. 3d 619 (Fla. 3d DCA 2014), Police violated the Fourth Amendment by entering the curtilage of Brown's home and conducting a "knock-and-talk." 

The court focused on several facts, including the fact that

• The property was enclosed by not one but TWO fences.
• Access to the front door required passing through two gates.
• There were multiple "No Trespassing" signs posted on the outer fence.
• The mailbox was outside the fence.
• The home's curtilage was not visible from outside the fences.
• Brown testified that he did not expect uninvited visitors in the enclosed area.

Even faced with a veritable maze, police were determined to get in despite the repeated warnings against trespassing.  Because the defendant had taken sufficient steps to exclude the public the court found he had established a reasonable expectation of privacy.

 

Even if a person hasn't created a fortress like what happened in Brown v. State, by posting both NO TRESPASSING and NO SOLICITING signs, the homeowner is communicating:

1. Entry is not authorized.
2. Solicitation is specifically prohibited.

From an evidentiary standpoint, this makes it much harder for a solicitor to argue "I thought I was welcome."

Whether it increases criminal penalties depends on the applicable state statute or local ordinance.

Usually:

• The signs don't automatically multiply penalties.
• They strengthen proof that notice was given.

The bigger question is whether police will enforce the laws against those perpetrating trespass and solicitation?

The answer is:  Sometimes (yeah, sorry about that).

If the solicitor:

• Knocks once
• Leaves

Most officers are unlikely to make an arrest.

If the solicitor is abusive, and

• Ignores obvious signs
• Refuses to leave
• Returns repeatedly
• Becomes aggressive
• Rings continuously

Police are much more likely to view it as a legitimate trespass complaint.  The exact response depends heavily on state law and local ordinances.

Some key cases that deal with these issues include:

Breard v. City of Alexandria, 341 U.S. 622 (1951).  The Court recognized the homeowner's right to be left alone and noted that householders may protect themselves from unwanted solicitation.  The Court stated that "The homeowner has the right to determine whether he shall receive strangers as visitors."

That principle is often cited when discussing unwanted solicitation.

In Watchtower Bible & Tract Society v. Village of Stratton, 536 U.S. 150 (2002), the SCOTUS struck down a permit requirement for door-to-door canvassing but specifically recognized that homeowners may protect themselves through no-solicitation signs and by refusing contact.

In Martin v. City of Struthers, 319 U.S. 141 (1943), the SCOTUS protected door-to-door advocacy but emphasized that homeowners retain the right to decide whether they want to receive visitors.

I guess the moral to this story is: Don't piss people off by ringing their doorbells over and over and over again.  I mean, come on, life is hard enough.  If someone is going to go through all the trouble to finding their slice of heaven, the least we the people can do is leave them in peace.

Make a note of that.