Can cops charge for trespassing on Asheville public sidewalks? NC Appeals Court revisits

ASHEVILLE - A North Carolina appellate court has altered its opinion in the case of a homeless man arrested in 2019, months after an attorney warned the judges' decision could have created an "unprecedented expansion of police power."

A three-judge appeals court panel May 17 released a second, altered opinion in the case of Travis Christopher Hahn, a homeless man arrested on a sidewalk outside a Biltmore Avenue pizzeria where Asheville Police Department officers said he trespassed then kicked and spat on law enforcement.

Judges on Feb. 1 released an opinion denying Hahn's request to dismiss charges he claimed were unlawful.

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But Hahn's attorney, Jason Christopher Yoder, quickly filed a motion to stay the judge's mandate and withdraw the original opinion, which he included in the motion.

In his motion to withdraw, Yoder asked judges to consider the case more thoroughly or "en banc," requiring all judges of a particular court hear a case.

"This court’s holding that police officers can trespass individuals from public sidewalks is an unprecedented expansion of police power that authorizes arbitrary enforcement," Yoder said in his motion.

Though the motion to withdraw the Feb. 1 opinion was initially denied, it was ultimately ordered to be withdrawn by chief appellate judge Donna Stroud, and significant portions of the case were changed in the May 17 opinion. However, the new opinion still denies Hahn's request to dismiss charges.

Yoder's focus on sidewalks and public spaces in his motion derives from the details of Hahn's 2019 arrest.

According to court documents, Hahn on June 1, 2019, was in downtown Asheville interacting with police near Manicomio Pizza.

That evening, starting about 6 p.m., APD Sgt. Rick Tullis was working for the restaurant in a secondary-employment capacity.

When the case was in Buncombe County Superior Court in 2019, Tullis testified Asheville restaurants “will employ officers in their off-duty time to provide security ... for various reasons; to have law enforcement powers, powers of arrest.”

Tullis was in his APD uniform during the incident, according to the ruling and noted that, while officers are “working secondary,” they are “still a sworn law enforcement officer.”

The restaurant at that time was in a "very congested" area and didn't have any "no trespassing" signs up.

The opinion describes how Hahn approached Tullis numerous times during Tullis' shift at the restaurant. Sometimes Hahn seemed to be talking to himself, sometimes it appeared he was talking to Tullis.

At one point, the ruling says Hahn followed Tullis across a street, commenting, "you better stay in the crosswalk or I will kick your a--,” Tullis testified.

When the officer asked Hahn if he was speaking to him, Hahn said he wasn't.

Later, Hahn started looking in Manicomio's windows, became agitated and began cursing.

Tullis told Hahn to "move along" several times, according to Tullis' testimony.

Hahn did, but then he came back, "uttering," "mumbling," "talking" and "cursing," according to Tullis' testimony.

Tullis then called for backup and when two other officers arrived, officers including Tullis arrested Hahn and charged him with second-degree trespass, resisting a public officer and assault on a government employee, according to charging documents supplied to the appellate court.

"At the time of defendant’s arrest, he did not possess any weapons or illegal substances and did not appear to be under the influence of drugs or alcohol," the opinion states.

But during the arrest, Tullis said Hahn spat on police and kicked him in the shins — he called it a "moderate kick" in testimony.

On Nov. 4, 2019, Hahn was indicted on one count of second-degree trespass, one count of resisting a public officer, two counts of assault on a government official/employee and one count of malicious conduct by a prisoner.

At a January 2020 trial, a Buncombe jury acquitted him of second-degree trespass and one count of assault on a government official, but convicted him on the other charges.

When Hahn tried to get the charges dismissed in the N.C. Court of Appeals, the three-judge panel ruled Tullis had "sufficient probable cause to effectuate (Hahn's) arrest" because he didn't follow the officer's commands to move. The opinion also noted the restaurant owner had given Tullis permission to "trespass someone."

But Hahn, argued Yoder in his motion, had every right to be on the sidewalk and faulted the three-judge panel for creating a "dangerous expansion of police power."

He said the panel's original opinion, "creates from scratch an entirely new power of the police to withdraw without reason or warning the license all of us enjoy to use public sidewalks based solely on the private interests of adjacent property owners or our failure to 'move' away as directed by an officer."

Yoder also said the court "appeared to have found" that an officer can revoke someone's "license" to use a sidewalk "when a public citizen comes back to a place, or is bothering people on someone else’s property. But trespass on public sidewalks is not a tool to vindicate the private property interests of other people. If it were, we could all be ejected from public areas adjacent to private buildings without warning or reason."

Yoder told the Citizen Times he didn't know why the panel of judges decided to make the changes in the new opinion, which now relies on Asheville's loitering ordinance, something not referenced in the first opinion.

Judges in the new opinion made no reference to Yoder's motion but significantly changed portions regarding trespassing.

"One of the troubling aspects of this second opinion is that at oral argument the state conceded to the panel that because the indictment alleged that Mr. Hahn resisted arrest for trespass, the state was bound by that allegation of the indictment. The new opinion does not address the issue of the indictment at all."

Yoder said he could not comment on any of his communications with Hahn and could not speak to his current status in life.

Hahn was in prison on charges including malicious conduct, resisting and officer and assault on an officer, according to public information published by North Carolina Department Of Public Safety.

He served more than a year of time in prison for those charges and now is in Buncombe County Detention Center waiting for his case to be decided, according to inmate records.

Yoder said he's still considering whether or not to file another motion to withdraw or further review in the appellate case.

Andrew Jones is Buncombe County government and health care reporter for the Asheville Citizen Times, part of the USA TODAY Network. Reach him at @arjonesreports on Facebook and Twitter, 828-226-6203 or arjones@citizentimes.com. Please help support this type of journalism with a subscription to the Citizen Times.

This article originally appeared on Asheville Citizen Times: Lawyer: Court's 1st call on Asheville homeless arrest was 'dangerous'