If you’ve been a runner for any length of time, you know that bathroom breaks are par for the course, and you can’t always control when and where you’ll need to go. Who among us has never had to search for appropriate tree cover deep in the woods, or furtively tiptoed onto a construction site to use a porta-potty?
Emergency pit stops are already nerve-wracking enough—the last thing you want is to get in trouble for taking care of your business. So we did the legwork and asked a lawyer if you can get arrested for using porta-potties that aren’t necessarily meant for public use, like the ones you might find on construction sites, home remodels, or business lots.
Coincidentally, New York real estate litigator Richard Shore is currently working on two cases involving raw sewage and a damaged sewage pipe underneath a client’s property, so he seemed like a keen expert to tap for this pressing issue.
“I should have my number one rate, which is regular, and then my number two, which only deals with, you know, issues involving number two,” he joked before getting down to business.
So, can you actually get arrested or be charged with a crime for using a porta-potty? Shore says it depends on where the toilet in question is.
“If it is located on a public access point, so on the trail or on the sidewalk, even if it’s adjacent to a construction site, it is fair game,” he says. “But if it is set back into the construction site, then there are some questions about what kind of place it is.”
He explains that, at least in New York (and laws are likely to be similar in other states), if you’ve been caught using a portable toilet that’s on school property or a public housing project, you’ve gone from a fourth degree trespass to a third degree trespass. In New York, a fourth degree trespass—the smallest level offense and punishable by a ticket—is defined as “intentionally entering the land or property that legally belongs to someone else.” Shore says that in Manhattan, “they won’t even prosecute you for that.”
Even if they did, the defense to any trespassing is “a reasonable belief you have permission to enter,” he says.
“So it depends. Does the runner have a reasonable like … there’s a porta-potty there that nobody’s using, right? It’s not locked. Unless there are signs that are saying ‘private use only,’ ‘no trespassing,’ or whatever, I think one could have a reasonable belief that the porta-potty is for the specific use of the porta-potty, which is to go to the bathroom.”
But the caveat for the more serious third degree offense is activated if the toilet in question is surrounded by some kind of fencing or enclosure, or as previously mentioned, is on school or public housing property.
“Then it’s actually slightly more serious, but I think that is your key distinguishing factor here—is the enclosure, or fencing. If you’re hopping a fence, it’s a very different decision than if you’re just walking right in, and I don’t think the enclosure means the door,” Shore says.
Attacking the issue of clandestine porta-potty usage from every angle, Shore points out that in theory, someone could bring a civil claim against someone for, say, a nuisance. “But a nuisance has to be continuing,” he adds. “So unless you’re in there for a really long time or you’re going back to the same one after being told not to, then I think you’re safe.”
So there you have it. Scale a fence or enter a school yard or public housing complex at your own risk. And if you’re in Texas, well, that’s a different story, “where they have different rules about entering property,” Shore says. “You know, if somebody has a ‘no trespassing’ sign and that kind of thing, your concerns aren’t with the law, right?”
Otherwise, don’t sweat your kinda sorta unsanctioned porta-potty usage. At most, you might be issued a ticket, and that’s pretty unlikely to happen, unless you lock yourself in or make an ongoing nuisance of yourself.
As Shore puts it, “There’s no person alive who is trying to spend more time in a porta-potty than they, like, absolutely need to. That’s a place that you get in and out of as quickly as possible, and not because you’re afraid of the law. So I think you’re pretty safe, at least in New York, that you’re not going to get arrested and hopefully not shot by entering one of the porta-potties on a construction site.”
Abby Carney is a writer and journalist in New York. A former D1 college runner and current amateur track athlete, she's written about culture and characters in running and outdoor sports for Runner's World, Like the Wind Magazine, The New York Times, and other outlets. She also writes about things that have nothing to do with running, and was previously the editor of a food magazine.
