Former Trump campaign manager Corey Lewandowski has, through counsel, sent a intent to sue letter to New York Magazine over an alleged home invasion by reporter Olivia Nuzzi.  Nuzzi in March admitted that she entered his home without permission — an act that certainly would be a crime as well as a tort. Update:  There is an interesting twist (and potential defense) to the potential criminal or tort case involving the “home” of Lewandowski, which also happens to be the office of Turnberry Solutions, a lobbying firm started a close Trump campaign associate. 

Nuzzi said that she was doing a story on former White House Communications Director Hope Hicks and entered the home after knocking for ten minutes. She recounted to the Columbia Journalism Review: “I tried to knock on the basement door, but the gate wasn’t open. Then I walked up the steps to the main door and knocked for, like, 10 minutes. And I’m knocking, knocking, nobody’s answering. But after a while, I just touched the door knob, and the door was open. I walked in and I’m in the house, by myself.” It was an incredible decision and she admits to talking a picture inside the house of a wall with a scroll reading “The wilderness shall blossom as the rose.”

Courts have previously held that reporters do not have any special privilege to commit trespass and may be sued for such offenses.  In Food Lion v. ABC , a store was shown in an undercover segment engaging in unsanitary techniques and accused Food Lion of selling rat-gnawed cheese, meat that was past its expiration date and old fish and ham that had been washed in bleach to kill the smell. Food lion denied the allegations and sued ABC for trespass. A jury ruled against ABC and awarded Food Lion punitive damages for the investigation involving ABC journalists lying on their application forms and assumed positions under false pretenses. (here). The Fourth Circuit however wiped out the punitive damage award while upholding the verdicts of trespass and breach of loyalty with awards of only $1 for each.

There is also a case out of the Seventh Circuit. Judge Richard Posner wrote the decision in Desnick v. ABC where investigative reporters went undercover in 1993 to show that employees of the Desnick eye clinic had tampered with the clinic’s auto-refractor, the machine used to detect cataracts so that the machine produced false diagnoses to find cataracts (and require procedures). The court rejected wiretapping claims (based on the state’s one-party consent rules) as well as trespass and defamation claims. On trespass, the court noted that the reporters were allowed into areas open to new patients. Posner relied on the consent to the entry to negate the trespass claim even when the entrant “has intentions that if known to the owner of the property would cause him . . . to revoke his consent.”

The fact that this was a property shared with a business does raise a Desnick-like distinction. Unlike the meat area behind the deli that was closed off to the public in Food Lion, Nuzzi could claim that this was an area where visitors would customarily be allowed access by the firm.

The townhouse in this case was located in D.C. where such unlawful entry is treated as a misdemeanor (absent any theft claim):

(1) Any person who, without lawful authority, shall enter, or attempt to enter, any private dwelling, building, or other property, or part of such dwelling, building, or other property, against the will of the lawful occupant or of the person lawfully in charge thereof, or being therein or thereon, without lawful authority to remain therein or thereon shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not more than $1,000, imprisonment for not more than 180 days, or both. The presence of a person in any private dwelling, building, or other property that is otherwise vacant and boarded-up or otherwise secured in a manner that conveys that it is vacant and not to be entered, or displays a no trespassing sign, shall be prima facie evidence that any person found in such property has entered against the will of the person in legal possession of the property.

It can also be the basis for a civil lawsuit alleging trespass as well as “intrusion upon seclusion.”

Any viable criminal or civil defenses for both Nuzzi and her employer (which could be held accountable under principles of respondeat superior) could well depend on the status of the building as a home or a business.  Working against Nuzzi is the fact that she was not granted access after knocking for ten minutes.  Yet, there is a glimmer of a defense in the multipurpose dwelling.