Are there situations where saying 'a cop let me do it' is a legal defense against prosecution

So now some capitol insurrectionists are saying the police invited them into the capitol. Theres some truth to that I’m sure based on some videos I’ve seen online of police taking down barricades and waving them in. However I don’t know if they did this so the crowd would be more concentrated and easier to control, or because they agreed with letting the crowd violently intimidate politicians to overthrow a democratic election.

The police in the US have encouraged a lot of terrorism against black people historically, civil rights activists and other reformers and there is a strong record of that. I seriously doubt you could go to the FBI in 1955 and say ‘the local sheriff let me beat up that black person’ as a legal defense.

But are there situations where a police officer letting you break a law is a valid defense? Like with the police taking down barriers at the capitol, does it vary based on intent? How would the insurrections know the intent?

Meaning if the cops removed the barriers as a way to make the crowd more concentrated and (in the polices mind easier to control) does that change things vs if the police letting them come in because the police wanted them to engage in terrorism? And what about people who arrived after the police took down barricades who didn’t know the barricades had been taken down, maybe they just saw an open walkway that a few thousand people had already used.

If police take down barricades and wave you in because they want to make the crowd easier to control, is that still trespassing? What if the police do it because they want to make it easier for the insurrectionists to commit violent terrorism and other crimes? How are the insurrectionists supposed to know the polices motives? Also what happens to people who show up 10 minutes after police take down the barricades, how can that be trespassing?

The issue would not be the intent of the police, it would be the intent of the trespasser/insurrectionist/tourist.

If the circumstances are such that a jury is convinced that you had the required state of mind when you entered/assaulted/etc., then you can be convicted.

If the jury believes you when you say you were just passing through, and the nice police officer waved you through the barricades, then you’ll be acquitted.

And if the jury thinks you probably knew you weren’t allowed in there, regardless of what the police did, but they think the prosecution didn’t prove it beyond a reasonable doubt, then you will also be acquitted.

But to be clear, a jury can surmise, beyond a reasonable doubt, a person’s intentions based on the circumstances. People often think of it as an almost insurmountable hurdle, but it’s not.

If a cop directs you to do something, the general understanding is that you’re supposed to do it. What if a cop directs you to do something illegal?

At least on some level, you’re supposed to follow the cop’s instructions. I think this is generally understood on the level of a traffic cop directing traffic – if an officer waves you through a red light, or directs traffic onto a one-way street in the wrong direction, etc. I believe the California Vehicle Code has an specific explicit law to that effect.

There are situations where you can claim to have relied on government statements to justify your actions. The only cases I recall have to do with tax law. If the right person in the taxing authority tells you that it’s legal to deduct something or to use some particular schedule then you can’t be prosecuted for doing that. I’m sure they can still disallow it and end up taking your money with interest, but they can’t impose additional fines or criminal penalties.

That kind of thing is a far cry from a cop allowing you to ransack a building.

A cop once directed me to drive the wrong way up an exit ramp, but the cop can supersede the signs while directing traffic.


While there’s a factual question here, I think the framing and context in the OP makes it unrealistic to expect a GQ-appropriate discussion of the issues. Moving to GD.

I was going to say something like this.

Removing barricades doesn’t make it legal for you to trespass. A cop directing you to go to a certain place does, however, strongly suggest that you should go to that place. It does not, however, suggest that you should commit vandalism or bodily injury to another person once you get there.

So yeah, if anyone followed a cop’s “direction” (wave) to go into the Capitol, and once there, did nothing illegal other than what would have amounted to trespassing had they not been directed in, then yes, I think they did nothing wrong. But if, once there, they broke something, defaced something, or hurt someone, then they are guilty of a crime.

Some things are wrong simply because they are against the law, and criminal trespass falls into that category, but some things are wrong because they just are: hurting someone, terrorizing someone, and damaging someone else’s stuff without permission, all fall into the category of “just wrong.”

So, being told to overlook the law as you know it by an authority figure is absolutely a defense to doing something that is illegal, but not in some objective sense “wrong.” It is not a defense to things that are objectively wrong, though, like hurting other people.

Regrettably, I think it’s actually a fairly strong defense, which is why I think trespassing could be somewhat difficult to prosecute, depending on circumstances and evidence.

In scenario A, let’s say that there’s solid video evidence of defendants A, B, and C defying police orders to move back, and they deliberately remove barriers, smash windows, and push doors down and officers out of the way – it’s obvious that there’s unauthorized entry. And it’s obvious that storming into congressional offices is also unauthorized entry, as is taking over empty legislative chambers. Those prosecutions will stand.

The harder cases to prosecute are those who simply followed the crowd, who could claim that they were met with little or no resistance. They were part of a rally. They followed the crowd. They confess that they thought it was weird how rowdy they were allowed to be but nobody explicitly confronted them individually. People in this category could legitimately argue that they had no reason to suspect that what they were doing was trespassing. They were walking into a public building where thousands of people visit each day.

The police have a lot of discretion to advise people and ask for assistance. Certain misdemeanours would be forgiven if one relied on an officer. But it is probably not a good defence against serious wrong-doing in most places.

For the insurrectionists, I couldn’t say. “We were invited by the President” is not a good defence either, but it is probably better?

The answer to the first question is rather obviously “yes.” The easiest way to imagine it is traffic laws – if an officer waives you through a red light, down a one-way road, over a double-yellow line, etc. There may be statutes dealing with that (that a direction from police supersedes traffic signs), but we all basically understand that we’re not going to get ticket for the violation.

For something like trespassing, my guess is that the statute requires a “knowing” and “willing” entry into a restricted area. The relevant intent here is going to be that of the alleged trespasser. If the police open the barriers and wave me into an ordinarily public (or even an ordinarily restricted) area, I would think it would be very hard to prosecute me for any sort of trespassing offense. (It’s also entirely possible that, quite regardless of intent, once the police remove barriers and wave people in, there is no longer restricted as a matter of law, so that intent may not matter).

There are two easy scenarios (subject to the ability to prove it): (1) a person who jumps a barrier/breaks down a door/otherwise accesses a restricted space by force – this person is almost certainly liable for some sort of trespassing-style offense and (2) the person who approaches the barrier or door and the police take down the barrier or open the door and affirmatively wave them in – this person is going to have a pretty good defense (and rightly so).

I think the difficult scenarios are: (3) the person who (perhaps as part of a group) arrives at an open door/moved barrier, knew that it had previously been restricted, sees no police presence either way, and enters and (4) the person who enters past police who take no action to encourage or discourage the entry. I think the issue there is going to be one of intent and, by extension, of credibility of the defendant as a witness. I think it would be prudent not to prosecute such a person for trespass-style offense, but it’s going to be case-specific.

(And obviously, even if you lawfully entered a public area, you are still potentially liable for any crimes to commit while there).

I think there’s a distinction between a police officer giving you permission to do something and a police officer directing you to do something.

Let’s say you’re in the middle of some riot and you see a police officer is throwing rocks through windows. He says “Go ahead. Pick up a brick and smash some windows. It doesn’t matter. Everything in this neighborhood is going to end up getting trashed anyway.”

Now let’s you join in and start smashing windows alongside the cop. But unbeknownst to either of you, there is a security camera recording all this. You’re later arrested and charged with property destruction.

I don’t see that in this case you would be able to defend your actions by saying the police officer had told you it was okay. Because he said it was okay if you did it but he didn’t tell you you had to do it. So you still made the choice to break those windows.

I see the equivalent in the Capitol riot. The police may have taken down barricades and told rioters they could enter the Capitol. But I don’t believe there was any situation where they told anyone they had to enter the Capitol. People had the choice of staying out on the street or going into the Capitol. When they went into the Capitol, they were choosing to trespass.

There’s also the question of where the insurrectionist is when given direction/permission by an officer. If they were already past the barricades that established the perimeter around the Capitol, had climbed the steps, and then an officer waved them through a door, they may have already committed trespassing.

I also agree with little_nemo above. And even if a police officer directed you to throw rocks through windows, I don’t think that would be a defense, because you’d know that wasn’t something they could authorize you to do.

So, if an officer wearing a MAGA hat, who you just saw taking a selfie with another rioter, waves you through a barricade, how convincing is it going to be when you say you didn’t have the intent to trespass, but just thought you were following an officer’s lawful direction?

I think that the problem is that entry into the Capitol and on to the Capitol grounds is generally regulated (and restricted or not) by the Capitol police. (And, unlike some restricted areas, there is a long history of public access).

Imagine I walk by a park and there is a gate that says “Park Closed – No Trespassing”. And, when I get there, a Park Police officer opens the gate and says “come on in, if you’d like”. He hasn’t directed me to enter, and I have the choice to continue on my way, but surely we don’t think I’ve violated any park trespassing laws if I go in. (Same scenario with a store. Let’s say there is a sign that says “Closed until 9 - No Trespassing” and, walking by at 8:30, a store clerk opens the door and says “feel free to browse”. Trespassing?).

I take your point on the brick throwing. But it would be unreasonable to conclude that I was being given lawful authority to throw bricks (also, entrapment?). But when it comes to something like trespassing – especially in otherwise public places – the violation occurs because you enter an area that has been restricted (and you had notice). If the person who is responsible for doing the restricting says it’s open, that seems different.

I see your point. But if I was a rioter, I don’t think I’d have much luck convincing a jury that I was just an innocent tourist who happened to be walking around that day, not noticing anything unusual was occurring around me, when I decided it would be a nice day to visit the Capitol.

It’s certainly not a guarantee. I agree that I can’t think of a legitimate reason why a police officer would direct you to break windows. But it would at least be something to work with.

“No, I didn’t know why the police officer wanted those windows broken. He didn’t explain. But I’m not a police officer and I’ve never had police training. I just assumed he had a valid reason that I couldn’t see so I followed his directions.”

Being directed to do something obviously illegal like throw rocks through someone else’s windows is one thing, but being waved through an entrance to a public building? How is one to know whether that is an authorized direction by an officer or not?

This is why some of those officers are in trouble; there is a certain level of expectation by the public that officers know what they are talking about and that you are supposed to follow their direction whether you understand it or not.

I’m not in law enforcement but even at my mundane level of government where I issue a couple dozen permits per year for people to do things, we are warned how to speak and especially write to avoid “officially induced error”. People think we (the officials) gave them permission to do something (because our wording wasn’t clear)… they go ahead and do something illegal (the error), and then blame us for inducing it. It’s not that we said to do it, but it’s recognized as a defense to whatever charge they could face. When we make mistakes like that, it may be decided not to pursue charges because of that defense.

Remember that not everyone accused of a crime is hauled into court automatically just because they can be. Prosecutors look at the evidence they have, seriousness of what happened, and think about what defenses the person might have. They make a judgement call at least partly based on how likely they will get a conviction before they decide to proceed, and many times they won’t.

Of course.

My point is that being waved through under some circumstances won’t negate the possibility that the prosecution could prove that you had the intent to trespass, and did in fact do so. That doesn’t mean that prosecutors will choose to prosecute everyone who can make that claim, either.

There certainly are all sorts of cases where an officer or official can direct you to do something where you have no idea whether they are right or not, but it is clear they have the power and you’d better do what they say despite not understanding.

When I was in high school we took a trip through Europe, and while passing through Frankfurt airport we had to go through some sort of customs lines. There were 3 different lines, each appearing to be for different things. I was the last in my group to get up to line and I tried to stand in the same one all my companions were in. Just before I got there an airport security guard (who happened to be carrying a submachine gun) directed me to go stand in a different line. My teacher looked back and waved at me to hurry up and get in our line… I tried talking to this guard to say who I was with and he started yelling that “it does not matter!”. No explanation, not willing to listen, but wearing a uniform, holding a gun, and giving me orders. Guess which authority figure’s directions I followed…

I’m not committed to my opinion on this, but I wonder about the second part.

If you are given permission to enter (or remain) by someone with the authority to do so (not even apparent authority but actual authority), can that be a trespass (which requires entry/remaining without lawful authorization) as a matter of law?

Do individual members of the Capitol Police have the actual authority to admit members of the public when the building is closed to the public?

I’m assuming not, but I’m open to a citation to the contrary.