For weeks now, hordes of the young and young-at-heart have been wandering the streets looking for Pokémon. Some have wandered onto private property, raising concerns about what is legal and illegal in the new world of augmented reality.
You've already seen the stories about Pokémon Go trainers having car wrecks, stumbling into armed robberies and some – here in Austin, no less – are even wandering into churches.
But, one case of two players being shot at in Florida is particularly interesting.
The two teens in the town Palm Coast were parked in a car in front of a home and had just captured a Tauros and Marowak, when the homeowner came out and shot at their car. The teens were unhurt, but the car was pierced by bullets. The homeowner claims he was awakened by a noise and felt threatened, which raises some questions about the legal line between actual reality and the augmented kind.
“If they were on a public roadway, that’s a public space. That’s perfectly fine. They can be there. They’re not trespassers at that point,” said Michelle Byington, an attorney with Houston-based Walker and Byington and a counselor for Texas Law Shield, a firearm and legal defense advocacy group.
She said that if that occurred in Texas, even if the two were on the front yard, you can’t use deadly force on trespassers.
“You can ask them to leave your property. You can use force, so you can physically try to get them off your property. Or you can do what most people would do in this scenario, [which] is call the police and let the police come handle it,” Byington said.
While some may be under the assumption that Texas' " Castle Doctrine" – a law that allows property owners to use force when threatened – may apply here, it’s more limited than that. It only applies if someone is trying to forcibly enter your occupied house, your occupied car or occupied business, but the key provision is that a property owner must be in immediate danger.
So, the law would not apply to most Pokémon Go players, but there's a more complicated legal issue surrounding the app that could negatively affect homeowners: geolocation.
Keith Lee, an Alabama attorney and legal blogger at Associates Mind, said because Pokemon Go uses geolocation, players have to move around in the real world to experience the augmented reality of the game. Unbeknownst to you, your cul-de-sac could be home to a ton of Eevees or the very rare, hard-to-catch Ditto.
“It’s a weird situation. They exist purely in code. It’s all just a bunch of ones and zeroes,” Lee says. “And they only manifest by use of particular devices.”
But, since those ones and zeros bring people into your yard, Lee says it could be equivalent to the attractive nuisance doctrine, which says a homeowner could be held liable for injuries incurred while a trespassing player attempts to capture the Pikachu next to your backyard pergola.
“Would I be able to turn around and seek indemnification from Nintendo and Niantic by virtue of [whether] they create an attractive nuisance on my property?” Lee asked. “That child would not have come on my property if there wasn’t some virtual monster there, but I didn’t put it there. Why should I be on the hook? I didn’t entice the child to come back there, they did.”
As of now, the game is so new there’s nothing on the books to answer some of these new legal questions. What is apparent is the appetite for augmented reality, and applications of the tech, will likely reach far beyond Pokémon Go. As of Monday, the game had more than 21 million active users.
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