The First Amendment guarantees people the right to peacefully assemble and protest. You have a constitutionally protected right to engage in peaceful actions in “traditional public forums” such as streets, sidewalks, or public parks. However, even in a public forum, the government can impose “time, place, and manner” restrictions on speech. The government, for example, may require permits for large protests or prohibit unreasonably loud demonstrations that disturb others.

Permitting policies and requirements vary from place to place, so check with the county or city where you wish to assemble or protest before doing so.

Restrictions on speech in a public forum are generally permissible as long as they are not based on content – what you are saying or protesting. The government cannot impose permit restrictions simply because it does not like the message of a certain speaker or group.

If, for example, you are planning a parade that involves closing down streets, a permit is almost always required. But a small march that stays on public sidewalks and obeys traffic signals often does not require a permit.

Generally, you have the right to distribute literature, hold signs, and collect petition signatures while on sidewalks or in front of government buildings as long as you are not disrupting other people or government proceedings, forcing passersby to accept leaflets, or causing traffic problems.

Drumming, dancing, singing, and chanting are all protected First Amendment activities. Street performers, mimes, or puppeteers also have the right to express themselves in public, subject to reasonable conditions.

Federal and state governments can limit setting up camps on public land. Similarly, tribal governments can limit access to their tribal and reservation lands. If the camp is on private land, any restrictions are subject to the landowner.

Limitations on Action

Water protectors who engage in civil disobedience – peaceful but unlawful activities as a form of protest – are not protected under the First Amendment and can be arrested.

If you endanger others while protesting, you can be arrested. An action that blocks vehicular or pedestrian traffic is illegal without a permit and you can be arrested. This conduct is not protected by the First Amendment.

You do not have the right to block a building entrance or physically harass people.

You generally do not have the right to engage in speech activities on private property without the consent of the property owner. You do not have the right to remain on private property after being told to leave.

There are different laws with respect to tribal lands. Every tribe has its own laws that govern its members and conduct on tribal lands. Tribes can create partnerships with local or federal law enforcement agencies and those agencies can be granted criminal authority to arrest or cite non-Native people on tribal land. Tribes maintain civil jurisdiction over everyone who willing enters their lands. If you are on tribal lands, check with tribal authorities if you have a question about an action or protest.

Relevant South Dakota Criminal Laws and Penalties

There are many laws that may be applicable to individuals who engage in protest activities in South Dakota. The ACLU of South Dakota does not believe that these laws are applicable to peaceful protest, but it’s important for you to be aware that these criminal statues exist in our state. Please do not, however, rely on this list to decide whether a proposed action is legal or not. 

During the 2020 South Dakota Legislative Session, legislators took actions that affected some of the laws below. These changes will go into effect on July 1 and are noted accordingly. 

1. Desecration of Flag

Q.Desecration of Flag
A.

S.D. Codified Laws § 22-9-1

Any person who knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States or flag of the State of South Dakota. The United States is defined as any flag, standard, or colors, or any part thereof, made of any substance and of any size evidently purporting to be the flag, standard, or colors of the United States of America. The flag of the State of South Dakota, is defined as any flag, standard, or colors, or any part thereof, made of any substance and of any size evidently purporting to be the flag, standard, or colors of the flag of the State of South Dakota.

Maximum authorized penalty if convicted: Class 1 misdemeanor - one-year imprisonment in a county jail or $2,000 fine or both.

2. Act of Terrorism

Q.Act of Terrorism
A.

S.D. Codified Laws § 22-8-12

Any person who commits a crime of violence or an act dangerous to human life involving any use of chemical, biological, or radioactive material, or any explosive or destructive device, with the intent to intimidate or coerce a civilian population, influence the policy or conduct of any government or nation, affect the conduct of any government or nation by assassination or kidnaping, or substantially impair or interrupt public communications, public transportation, common carriers, public utilities, or other public services is guilty of an act of terrorism. 

Maximum authorized penalty if convicted: Class C felony - life imprisonment in the state penitentiary. In addition, a fine of $50,000 may be imposed.

3. Terrorist Threat

Q.Terrorist Threat
A.

S.D. Codified Laws § 22-8-13

Any person who threatens to commit a crime of violence or an act dangerous to human life involving any use of chemical, biological, or radioactive material, or any explosive or destructive device, with the intent to intimidate or coerce a civilian population, influence the policy or conduct of any government or nation, affect the conduct of any government or nation, or substantially impair or interrupt public communications, public transportation, common carriers, public utilities, or other public services is guilty of making a terrorist threat. 

Maximum authorized penalty if convicted: Class 5 felony – five-year imprisonment in the state penitentiary. In addition, a fine of $10,000 may be imposed.

4. Obstructing Law Enforcement Officer, Firefighter, or Emergency Management Personnel

Q.Obstructing Law Enforcement Officer, Firefighter, or Emergency Management Personnel
A.

S.D. Codified Laws § 22-11-6

Any person who, by using or threatening to use violence, force, or physical interference or obstacle, intentionally obstructs, impairs, or hinders the enforcement of the criminal laws or the preservation of the peace by a law enforcement officer or jailer acting under color of authority, or intentionally obstructs, impairs, or hinders the prevention, control, or abatement of fire by a firefighter acting under color of authority, or intentionally obstructs emergency management personnel acting under color of authority, is guilty of obstructing a law enforcement officer, firefighter, or emergency medical technician. 

Maximum authorized penalty if convicted: Class 1 misdemeanor - one-year imprisonment in a county jail or a $2,000 fine or both.

5. Prohibition of Disorders and Disturbances

Q.Prohibition of Disorders and Disturbances
A.

S.D. Codified Laws § 9-29-3

Every municipality shall have power to provide for keeping and preserving the peace and quietness of the municipality, to prevent disorderly conduct, to prohibit public intoxication, and to prevent and suppress riots, affrays, noises, disturbances, and disorderly assemblies in any place.

Maximum authorized penalty if convicted: Depends upon municipal code (will vary).

6. Disturbance of Court Proceedings

Q.Disturbance of Court Proceedings
A.

S.D. Codified Laws § 16-15-4

Any breach of the peace, noise, or other disturbance that directly interrupts the proceedings of any court.

Maximum authorized penalty if convicted: Class 2 misdemeanor - 30 days imprisonment in a county jail or a $500 fine or both.

7. Disorderly Conduct

Q.Disorderly Conduct
A.

S.D. Codified Laws § 22-18-35

Any person who intentionally causes serious public inconvenience, annoyance, or alarm to any other person or creates a risk thereof by engaging in fighting in violent or threatening behavior, making unreasonable noise, disturbing any lawful assembly or meeting of persons without lawful authority, or obstructing vehicular or pedestrian traffic is guilty of disorderly conduct. 

Maximum authorized penalty if convicted: Class 2 misdemeanor - 30 days imprisonment in a county jail or a $500 fine or both. If the defendant has been convicted of or entered a plea of guilty to three or more violations of disorderly conduct within the preceding 10 years, the defendant is guilty of a Class 1 misdemeanor for any fourth or subsequent offense.

8. Use of Substance or Device to Communicate Felonious Threat--Felony

Q.Use of Substance or Device to Communicate Felonious Threat--Felony
A.

S.D. Codified Laws § 22-14A-24

Any person who intentionally communicates a threat by leaving a substance or device, thereby causing either serious public inconvenience, or the evacuation or serious disruption of a building, place of assembly, facility of public or school transport, or a school related event, is guilty of communicating a felonious threat. For the purposes of this section, a substance or device includes any actual or apparently dangerous weapon, destructive device, dangerous chemical, biological agent, poison, or harmful radioactive substance. 

Maximum authorized penalty if convicted: Class 4 felony - 10 years imprisonment in the state penitentiary. In addition, a fine of $20,000 may be imposed.

9. Riot

Q.Riot
A.

S.D. Codified Laws § 22-10-1

Any use of force or violence or any threat to use force or violence, if accompanied by immediate power of execution, by three or more people acting together and without authority of law, is riot.

Maximum authorized penalty if convicted: Class 4 Felony - 10 years imprisonment in the state penitentiary. In addition, a fine of $20,000 may be imposed.

During the 2020 South Dakota legislative session, legislators changed the definition of riot and created the possibility of a civil liability for the act. After July 1, these statues will be in effect:

Riot (felony)

S.D. Codified Laws § 22-10-1

Any intentional use of force or violence by three or more people acting together and without authority of law to cause any injury to any person or any damage to property.

Maximum authorized penalty if convicted: Class 4 felony – a 10-year imprisonment in the state penitentiary. In addition, a fine of $20,000 may be imposed.

Riot (civil)

S.D. Codified Laws § 20-9-53(5)

Any intentional use of force or violence by three or more people acting together and without authority of law to cause any injury to any person or any damage to property.

Maximum authorized penalty if convicted: Financial penalty on a case-by-case basis. 

10. Liability for Riot Boosting

Q.Liability for Riot Boosting
A.

S.D. Codified Laws § 20-9-54

In addition to any other liability or criminal penalty under law, a person is liable for riot boosting, jointly and severally with any other person, to the state or a political subdivision in an action for damages if the person upon the direction, advice, encouragement, or solicitation of any other person, uses force or violence.

Maximum authorized penalty if convicted: Financial penalty on a case-by-case basis. 

During the 2020 South Dakota legislative session, legislators eliminated the term “riot boosting” from the state’s laws. In place of “riot boosting,” the legislature passed several laws creating civil liability for inciting a riot.  After July 1, these statues will be in effect:

  • Incitement to Riot (civil definition)
    • S.D. Codified Laws § 20-9-53(2)
    • Any person who, with the intent to cause a riot, commits an act or engages in conduct that urges three or more people, acting together and without authority of law, to use force or violence to cause any injury to any person or any damage to property, under circumstances in which the force or violence is imminent and the urging is likely to incite or produce the use of force or violence, incites riot. Urging includes instigating, inciting, or directing, but does not include the oral or written advocacy of ideas or expression of belief that does not urge the commission of an act or conduct of imminent force or violence.
    • Maximum authorized penalty if convicted: Financial penalty on a case-by-case basis. 
  • Liability for riot and incitement to riot (civil)
    • S.D. Codified Laws § 20-9-54
    • In addition to any other liability or criminal penalty under law, a person is personally liable for incitement to riot, and jointly and severally liable for incitement to riot with any other person engaged in the same riot, to the state or a political subdivision in an action for damages if the person commits incitement to riot.
    • This does not include the oral or written advocacy of ideas or expression of belief that does not urge the commission of an act or conduct of imminent force or violence and does not prevent the peaceable assembly of persons for lawful purposes of protest or petition.

Maximum authorized penalty if convicted: Financial penalty on a case-by-case basis.

11. Damages for Riot Boosting

Q.Damages for Riot Boosting
A.

S.D. Codified Laws § 20-9-56

The plaintiff in an action for riot boosting may recover both special and general damages, reasonable attorney’s fees, disbursements, other reasonable expenses incurred from prosecuting the action, and punitive damages. 

Maximum authorized penalty if convicted: Financial penalty on a case-by-case basis. 

During the 2020 South Dakota legislative session, legislators eliminated the term “riot boosting” from the State’s laws. In place of “riot boosting,” the legislature passed several laws creating civil liability for inciting a riot. After July 1, these statues will be in effect:

  • Incitement to Riot (civil definition)
    • S.D. Codified Laws § 20-9-53(2)
    • Any person who, with the intent to cause a riot, commits an act or engages in conduct that urges three or more people, acting together and without authority of law, to use force or violence to cause any injury to any person or any damage to property, under circumstances in which the force or violence is imminent and the urging is likely to incite or produce the use of force or violence, incites riot. Urging includes instigating, inciting, or directing, but does not include the oral or written advocacy of ideas or expression of belief that does not urge the commission of an act or conduct of imminent force or violence.

Maximum authorized penalty if convicted: Financial penalty on a case-by-case basis. 

  • Damages for Riot or Incitement to Riot
    • S.D. Codified Laws § 20-9-56
    • The plaintiff in an action for riot or incitement to riot may recover both special and general damages, reasonable attorney’s fees, disbursements, other reasonable expenses incurred from prosecuting the action, and punitive damages. 

Maximum authorized penalty if convicted: Financial penalty on a case-by-case basis. 

12. Aggravated Riot as Felony

Q.Aggravated Riot as Felony
A.

S.D. Codified Laws § 22-10-5

Any person who carries a dangerous weapon while participating in a riot is guilty of aggravated riot. 

Maximum authorized penalty if convicted: Class 3 felony - 15 years imprisonment in the state penitentiary. In addition, a fine of $30,000 may be imposed.

13. Encouraging or Soliciting Violence in Riot

Q.Encouraging or Soliciting Violence in Riot
A.

S.D. Codified Laws § 22-10-6

Any person who participates in any riot and who directs, advises, encourages, or solicits other persons participating in the riot to acts of force or violence. Note: The court has prohibited the state from enforcing this law by issuing an injunction. 

Maximum authorized penalty if convicted: Class 2 felony – a 25-year imprisonment in the state penitentiary. In addition, a fine of $50,000 may be imposed.

In the 2020 Legislative Session, legislators eliminated this law and replaced it with criminal penalties for inciting a riot.

  • Incitement to Riot
    • S.D. Codified Laws § 20-10-17
    • Any person who, with the intent to cause a riot, commits an act or engages in conduct that urges three or more people acting together and without authority of law, to use force or violence to cause any injury to any person or any damage to property, under circumstances in which the force or violence is imminent and the urging is likely to incite or produce the use of force or violence, incites riot. 
    • Urging includes instigating, inciting, or directing but does not include the oral or written advocacy of ideas or expression of belief that does not urge the commission of an act or conduct of imminent force or violence. This does not prevent the peaceable assembly of people for lawful purposes of protest or petition.

Maximum authorized penalty if convicted: Class 5 felony – a five-year imprisonment in the state penitentiary. In addition, a fine of $10,000 may be imposed.

14. Encouraging or Soliciting Violence in Riot Without Participating

Q.Encouraging or Soliciting Violence in Riot Without Participating
A.

S.D. Codified Laws § 22-10-6.1

Any person who does not personally participate in any riot but who directs, advises, encourages, or solicits other persons participating in the riot to acts of force or violence. Note: The court has prohibited the state from enforcing the law by issuing an injunction. 

Maximum authorized penalty if convicted: Class 5 felony – a five-year imprisonment in the state penitentiary. In addition, a fine of $10,000 may be imposed.

During the 2020 Legislative Session, legislators eliminated this law and replaced it with criminal penalties for inciting a riot.

  • Incitement to Riot
    • S.D. Codified Laws § 20-10-17
    • Any person who, with the intent to cause a riot, commits an act or engages in conduct that urges three or more people acting together and without authority of law, to use force or violence to cause any injury to any person or any damage to property, under circumstances in which the force or violence is imminent and the urging is likely to incite or produce the use of force or violence, incites riot.
    • Urging includes instigating, inciting, or directing but does not include the oral or written advocacy of ideas or expression of belief that does not urge the commission of an act or conduct of imminent force or violence. This does not prevent the peaceable assembly of people for lawful purposes of protest or petition.

Maximum authorized penalty if convicted: Class 5 felony – a five-year imprisonment in the state penitentiary. In addition, a fine of $10,000 may be imposed.

15. Unlawful Assembly

Q.Unlawful Assembly
A.

S.D. Codified Laws § 22-10-9

Any person who assembles with two or more people for the purpose of engaging in conduct constituting riot or aggravated riot or who, being present at an assembly that either has or develops such a purpose, remains there, with intent to advance that purpose, is guilty of unlawful assembly. 

Maximum authorized penalty if convicted: Class 1 misdemeanor - one-year imprisonment in a county jail or a $2,000 fine or both.

16. Refusal to Disperse or Refrain From Riot or Unlawful Assembly

Q.Refusal to Disperse or Refrain From Riot or Unlawful Assembly
A.

S.D. Codified Laws § 22-10-11

Any person who, during a riot or unlawful assembly, intentionally disobeys a reasonable public safety order to move, disperse, or refrain from specified activities in the immediate vicinity of the riot, is guilty of a Class 1 misdemeanor. A public safety order is any order, the purpose of which is to prevent or control disorder or promote the safety of persons or property, issued by a law enforcement officer or a member of the fire or military forces concerned with the riot or unlawful assembly.

Maximum authorized penalty if convicted: Class 1 misdemeanor - one-year imprisonment in a county jail or a $2,000 fine or both.

17. Resisting Arrest

Q.Resisting Arrest
A.

S.D. Codified Laws § 22-11-4

Any person who intentionally prevents or attempts to prevent a law enforcement officer, acting under color of authority, from effecting an arrest of the actor or another, by using or threatening to use physical force or violence against the law enforcement officer or any other person or using any other means which creates a substantial risk of causing physical injury to the law enforcement officer or any other person. 

Maximum authorized penalty if convicted: Class 1 misdemeanor - one-year imprisonment in a county jail or a $2,000 fine or both

18. Intentional Damage to Property

Q.Intentional Damage to Property
A.

S.D. Codified Laws § 22-34-1

Any person who, with specific intent to do so, injures, damages, or destroys public property without the lawful consent of the appropriate governing body having jurisdiction thereof or private property in which any other person has an interest, without the consent of the other person. 

Maximum authorized penalty if convicted: Class 2 misdemeanor (if the damage to property is $400 or less) – a 300-day imprisonment in a county jail or a $500 fine or both.

  • Class 1 misdemeanor (if the damage to property is $1,000 or less but more than $400) – a one-year imprisonment in a county jail or a $2,000 fine or both.
  • Class 6 felony (if damage to property is $2,500 or less but more than $1,000) – a two-year imprisonment in the state penitentiary or a fine of $4,000 or both.
  • Class 5 felony (if damage to property is $5,000 or less but more than $2,500) – a five-year imprisonment in the state penitentiary. In addition, a fine of $10,000 may be imposed.
  • Class 4 felony (if damage to property is $100,000 or less but more than $5,000) – a 10-year imprisonment in the state penitentiary. In addition, a fine of $20,000 may be imposed.
  • Class 3 felony (if damage to property is $500,000 or less, but more than $100,000) – a 15-year imprisonment in the state penitentiary. In addition, a fine of $50,000 may be imposed.
  • Class 2 felony (if damage to property is more than $500,000) – a 25-year imprisonment in the state penitentiary. In addition, a fine of $50,000 may be imposed.

19. First-Degree Arson

Q.First-Degree Arson
A.

S.D. Codified Laws § 22-33-9.1

Starting a fire or causing an explosion with the intent to destroy any occupied structure of another.

Maximum authorized penalty if convicted: Class 2 felony – a 25-year imprisonment in the state penitentiary. In addition, a fine of $50,000 may be imposed.

20. Second-Degree Arson

Q.Second-Degree Arson
A.

S.D. Codified Laws § 22-33-9.2

Starting a fire or causing an explosion with the intent to destroy any unoccupied structure of another or destroy or damage any property, whether his or her own or another’s, to collect insurance for such loss.

Maximum authorized penalty if convicted: Class 4 felony – a 10-year imprisonment in the state penitentiary. In addition, a fine of $20,000 may be imposed.

21. Reckless Burning or Exploding

Q.Reckless Burning or Exploding
A.

S.D. Codified Laws § 22-33-9.3

Starting a fire or causing an explosion, whether on his or her own property or another’s, and thereby recklessly placing another person in danger of death or serious bodily injury or placing a building or occupied structure of another in danger of damage or destruction.

Maximum authorized penalty if convicted: Class 4 felony – a 10-year imprisonment in the state penitentiary. In addition, a fine of $20,000 may be imposed.

22. Throwing Substance Upon Public Ways or at Vehicles

Q.Throwing Substance Upon Public Ways or at Vehicles
A.

S.D. Codified Laws § 22-34-27

Depositing, throwing, or propelling any substance upon any highway, roadway, runway, or railroad tracks, or at any vehicle while such vehicle is either in motion or stationary with intent to cause damage.

Maximum authorized penalty if convicted: Class 1 misdemeanor – a one-year imprisonment in a county jail or a $2,000 fine or both.

23. Knowingly Damaging or Tampering with Property Causing Interruption of Communications, Transportation, or Utility Service

Q.Knowingly Damaging or Tampering with Property Causing Interruption of Communications, Transportation, or Utility Service
A.

S.D. Codified Laws § 22-34-28

Knowingly damaging or tampering with any property and, as a direct result causes a substantial interruption or impairment: in television, radio, telephone, telegraph, or other mass communications service; in police, fire, or other public service communications; in radar, radio, or other electronic aids to air or marine navigation or communications; or in amateur or citizens band radio communications being used for public service or emergency communications and causes a substantial interruption or impairment in public transportation, water supply, gas, power, or other utility service.

Maximum authorized penalty if convicted: Class 6 felony – a two-year imprisonment in the state penitentiary or a fine of four thousand dollars, or both.

During the 2020 Legislative Session, legislators changed this law. 

  • Substantial Interruption or Impairment—Utility Service—Critical Infrastructure
    • S.D. Codified Laws § 22-34-28
    • Any person who, by any means, knowingly damages or tampers with any property and, as a direct result causes a substantial interruption or impairment in television, radio, telephone, telegraph, internet, or other mass communications service; in police, fire, or other public service communications; in radar, radio, or other electronic aids to air or marine navigation or communications; or in amateur or citizens band radio communications being used for public service or emergency communications and causes a substantial interruption or impairment in public transportation, water supply, gas service; electric service; critical infrastructure facility; or other utility service.

Maximum authorized penalty if convicted: Class 6 felony (if no physical injury is involved) – a two-year imprisonment in the state penitentiary or a fine of $4,000 or both.

Class 4 Felony (if such damage or tampering causes physical injury to another person) – a 10-year imprisonment in the state penitentiary. In addition, a fine of $20,000 may be imposed. 

24. Entering or Remaining in Building

Q.Entering or Remaining in Building
A.

S.D. Codified Laws § 22-35-5

Any person who, knowing that he or she is not privileged to do so, enters or remains in any building or structure surreptitiously. 

Maximum authorized penalty if convicted: Class 1 misdemeanor – a one-year imprisonment in a county jail or a $2,000 fine or both.

The 2020 Legislative Session introduced a definition of a “critical infrastructure facility” into the state’s code. It also added penalties for entering into these facilities or interfering with their functioning.   

Definition of Critical Infrastructure Facility

S.D. Codified Laws § 22-1-2(9A)

Any of the following facilities, whether in operation, idle, or under construction, maintenance or repair, that are enclosed by a fence or other physical barrier that is obviously designed to exclude trespassers and are clearly marked with a sign that is posted on the property and reasonably likely to come to the attention of any trespasser that indicates that entry is forbidden, or any pole or tower used for any of the purposes in this subdivision, whether enclosed or marked with a sign or not.

  • Electric utility facility, including a power generation facility, an electric transmission facility, an electric station or substation, or any other facility used to support the generation, transmission, or distribution of electricity
  • Water tower, municipal or rural water system well, water intake structure, or water treatment facility
  • Natural gas utility facility, including a regulator station, a compressor station, an odorization facility, a mainline valve, a natural gas storage facility, or any other facility used to support the acquisition, transmission, distribution, or storage of natural gas
  • Tank farm, pipeline terminal, pipeline, pump or compressor station or storage facility for gasoline, crude or refined or synthetic oil, ethanol, propane, liquid natural gas, or other hazardous liquid
  • Transportation facility, including a port, railroad switching yard, or trucking terminal; 
  • Hazardous waste storage, treatment, or disposal facility
  • Oil and gas locations, facilities, and equipment, including temporary drilling rigs, permanent oil and gas product facilities, and artificial lift equipment
  • Communications services facility, infrastructure or equipment involved in the carriage of essential communications services for both wired and wireless communications, switching, routing, repeater/amplifier equipment or other electronic equipment, macro and micro wireless towers using federally licensed spectrum, video headend equipment, and satellite communications receiver or transmission equipment
  • Dam that is owned by the state or a subdivision
  • Facility whose owner or operator is required to submit a risk management plan under the federal Chemical Safety Information, Sit e Security, and Fuels Regulatory Relief Act (42 U.S.C. 7412(r)); or is identified and regulated by the United States Department of Homeland Security Chemical Facility Anti–Terrorism Standards (CFATS) program
  • Any construction area, pipe yard, or lay-down yard for any of the above, whether permanent or temporary in nature.

25. Criminal Trespass

Q.Criminal Trespass
A.

S.D. Codified Laws § 22-35-5

Any person who, knowing that he or she is not privileged to do so, enters or remains in any building or structure surreptitiously, or enters or remains in any critical infrastructure facility.

Maximum authorized penalty if convicted: Class 1 misdemeanor - a one-year imprisonment in a county jail or a $2,000 fine or both.

26. Entering or Refusing to Leave Property After Notice

Q.Entering or Refusing to Leave Property After Notice
A.

S.D. Codified Laws § 22-35-6

Any person who, knowing that he or she is not privileged to do so, enters or remains in any place where notice against trespass is given by actual communication to the person who subsequently commits the trespass, posting in a manner reasonably likely to come to the attention of trespassers, or fencing or other enclosure which a reasonable person would recognize as being designed to exclude trespassers. 

Maximum authorized penalty if convicted – Class 2 Misdemeanor - thirty days imprisonment in a county jail or a $500 fine, or both. However, if such trespasser defies an order to leave, personally communicated to him or her by the owner of the premises or by any other authorized person, the trespasser is guilty of criminal trespass, which is a Class 1 misdemeanor.