FACTS OF THE CASE:
The Defendants, all accomplished endurance athletes, were swimming as part of their training regimen at the Beaverdam Reservoir. They believed that they were permitted to do so as there were groups lead by official coaching via a charitable national training program. The Defendants were under the impression that permission had been granted by Fairfax County (who derives water from the reservoir). The “Speedo 5” believed that as long as they: proceeded in groups, in daylight on Saturday morning, with a kayak accompanying them, they would not be in violation of the law.
However, the Game and Inland Fisheries Conservation Police who caught them pointed out that there are clearly posted no trespass signs. The officer also noted that the group had split up, and the kayak was not visible to him. Most importantly, Officer M. Diluigi pointed out that the County can not have other people, especially teenagers, risk their lives by imitating the Defendants. It is a recipe for tragedy.
On a related note, the Coach who owned a local sports shop and who lead such groups prior to the date of these arrests, has since gone out of business and left the Commonwealth. Despite repeated requests from the Defendants and their counsel, he never produced the permission letter before the trial in the Loudoun County General District Court.
The law the swimmers violated can be found at Virginia Code § 18.2 119, which provides:
“[i]f any person without authority goes upon or remains upon the lands…of another. . . after having been forbidden to do so by a sign…posted by [the owner]. . . , he shall be guilty of a Class 1 misdemeanor.”
For those who do not think that a misdemeanor is serious, think again. A Class 1 Misdemeanor can mean jail time for up to 12 months AND a fine of up to $2,500 AND court costs AND a permanent criminal record.
The police and game wardens are simply trying to prevent violations of the law, injury and death. Even in the most thoroughly supervised open water events there is some danger. Unsupervised and unsupported open water swimming can have fatal, as well as criminal consequences.
Take advantage of supervised and supported swims and events, such as those found at Lake Audubon in Reston (home of the Jim McDonnell swims each Memorial Day, the Reston Triathlon, etc.). This area has a number of open water events, where safety personnel are present and charities and local clubs are the beneficiaries. There are local clinics and also opportunities to work on your open water skills by swimming the first leg of a triathlon or aquathlon for a team. As the popularity of the Chesepeake and Bay Bridge Swims increases, there are bound to be more events created. The recent D. C. Nations Triathlon got its permits this year and had a mile swim in the Potomac near the Kennedy Center ! In addition to warm water, fireboats, and a seawall that made navigation easier, it also featured a “DeCon* tunnel” that all competitors ran through upon exiting the water !
If you are swimming without a permit, not in a sanctioned event or in violation of posted signs, be forewarned: You will be arrested, charged and facing stiff sentences if convicted. Plus, others who likely do not have your skills, endurance, and experience with open water swimming, may try to emulate you. And while imitation is the highest form of flattery, it can lead to disaster and death. Don’t be dumb: don’t swim where you’re not supposed to swim. If in doubt, just stay out.
Remember, Speedos don’t come with pockets for bail money.
The “Triathlon Trial Lawyer” Doug Landau is a Masters Swimmer, All American Triathlete and 2008 Aquathlon World Championship (swimming and running) qualifier. He has successfully represented injured athletes and counseled coaches, doctors, sports professionals and athletic product suppliers throughout the United States. He prefers events that are “wet suit legal” and is looking for those that allow “water wings.” His office is conveniently located near the W&OD Trail 20 mile marker (the Herndon caboose).