Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
Over on the Member Feed, skipsul writes about Barnes v. State, a recent case in which the Indiana Supreme Court ruled that Hoosiers have no right to resist illegal police entry into their homes. Justice Steven David, writing the opinion for the court asserted,
We believe ... a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.
Richard will know much more about this than I, but this decision surely must overrule the default common law rule. It seems to me that a homeowner has the right to ask a police officer for his warrant, and if the officer doesn't have one, the government is without legal authority and the homeowner can resist. There are a few exceptions that exist, such as exigent circumstances or national security needs, to the warrant requirement. But if those are not present, the government must get a warrant first.
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Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
The questions about the use of force in defense of property have undergone a complex evolution over time. At one point, the rule was that people could use self-help to assert their legal rights over property. One illustration of the practice was the undoubted right of a landlord to throw the defaulting tenant off the property, and to deposit his goods on the street. The more recent view on this question is that the landlord has to bite his tongue and wait for the sheriff to remove the offending tenant. The quid pro quo, which is generally honored in practice, is to make sure that this remedy is available in a summary procedure within days after the default has taken place. Thus usually, the only issue in the repossession case is whether the tenant was in default. Other issues have to wait for a longer hearing.
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
The issue with the police officer follows similar lines. The entry cannot be resisted, even if there is no warrant, but there can be some remedy against the state in the event that the officer has exceeded his or her authority. The point here is that resistance against police officials is a risky business, and the legal choice in Indiana was to let the public injustice take place by offering a prompt remedy after the fact. The question is one on which there can be honest disagreement, and in the end, what John said has a lot of sense. Make sure that the warrants are in order so that the uncertainty is eliminated before some ugly confrontation takes place.
Note too that the warrant will not be required in many instances in some kind of an emergency, such as the case of domestic violence, which is an issue on which all parties agree, including the two dissenters in Indiana.
Nov '10
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
I often wonder if the judges who decide these cases ever try to place themselves in the position of those affected by their pronouncements. I conclude that they do not because they think of themselves as members of a separate class that won’t ever have to live under the rules they make for everyone else.
Dec '10
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
What effect could this ruling ultimately have on the various "castle" laws in the US? Maybe this is my laymen skirt showing here but I always assumed that I was by default in the right resisting entry to my home by anyone without due process? Are we looking at another permutation/perversion of Kelo?
Ug... I should know better than to check ricochet after last call. Too late to set up claymores and kill pits(KIDDING)
Jul '10
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
I don't know if Indiana has a "castle" law, but a ruling by their supreme court will only affect the laws in Indiana. Now you could see another state's SC taking a similar stance b/c they think Indiana got it right.
I believe it's prudent to put the overall safety of both the citizen and police officer above the defense of property. In practice, this situation probably has more to do with actual criminal conduct being investigated etc. when the officers involved didn't go through all of the procedures properly.
I think the average person is probably wondering whether or not this means the local SWAT team can come break down your door for no reason, and with no recourse. This has more to do IMO with preventing criminal actors from claiming self-defense when they resisted arrest when the officer conducting the entry didn't have a proper warrant. Then again, I haven't read the facts of the case, so I don't know that for sure.
Jul '10
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
Part of the problem with this sort of debate is that when it filters down from the courts to the streets, a lot of nuance gets lost and you have to deal with the often wide gulf between what people's rights are and what people think their rights are.
I have had many a drunken offender express to me their no doubt sincere beliefs that I was acting illegally in detaining or arresting them. To this point, they have been uniformly wrong. A few of them have even pointed out that they have a right under law in our state to resist unlawful arrest. My response is: well, fight me if you must, but you had better be right.
This is not to say the police are right in every circumstance, or that no abuse occurs. But what, other than the applause of armchair internet revolutionaries, is to be gained by encouraging citizens to physically fight the police? The police are going to win that fight in the moment, even if they lose in court later. The time to fight unlawful entry is in the courts, not in the streets. Does the world really need another Cory Mayes?
Jan '11
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
All of the explanations sound fine, but when you look up from the details, you're left with the conclusion that individuals are no longer entitled to protect themselves. They're now expected to wait for government to protect them. And we all know the old canard: call a cop and call for a pizza, and see who gets there first.
I'm certainly not in favor of seeing cops put in harm's way. On the other hand, it makes the warrant meaningless. A cop has always had the practical ability to force his way into a private home without a warrant, and if he behaved illegally, the homeowner has always been able to sue, after the fact. The only thing that ever prevented the entry was the warrant. But if a cop can enter a property, with or without a warrant anyway, what difference would a warrant make? The warrant's only value was in preventing a cop from entering in the first place.
Dec '10
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
Not related enough, but there is apparently an increase in forced entries that are not lawful and not resisted, that are ending tragically. I have seen several stories like this in the past few years.
Jun '10
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
"And we all know the old canard: call a cop and call for a pizza, and see who gets there first."
This test only works if you don't tell the cop you called for the pizza.
I don't really understand the point of this. Certainly if the cops enter illegally the "fruit of the poison tree" will take effect, but not until the issue reaches the courts. If the cop continues his illegal behavior by physically assaulting a person, that person has a right to defend themselves. Initiating physical contact with a cop will never work out well for the perpetrator. Even defending yourself physically from an out of control cop can be very touchy legally. But at some point, if yours or your family's life is in the balance, what are you to do? How does this law clarify anything?
Jul '10
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
The Thnicka Man:
I believe it's prudent to put the overall safety of both the citizen and police officer above the defense of property. · May 13 at 11:06pm
Private property is the foundation of Freedom. I believe it's prudent to err on the side of Freedom and "put the overall safety of both the citizen and police officer" much further down the list.
"Safety" above private property.... what have We come to?
Mar '11
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
Shooting a cop defending your castle can get you the death penalty - despite all the mistakes the police make. I saw a story about a guy in Mississippi who shot someone forcing thier way into the house - it turned out to be the police with a forced entry warrant; which they served on the wrong house, and the innocent guy shot the cop defending his house. Even with the cops admitting it was the wrong house, add a bad lawyer (moving the trial to a peaceful city instead of having it where it happened, where home invasion robberies were common), and the guy got the death penalty.
A ruling like this one, saying you have no right to resist, will only encourage more prosecutions, despite what the “facts” of the case turn out to be.
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
I know I'm in a legal minority, but I don't see a reason to not treat a warrantless entry without exigent circumstances as a trespass.
Edited on May 14, 2011 at 6:37amSep '10
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
Michelle Malkin has been complaining for quite some time about the overuse of "no knock" warrants and the overmilitarization of police SWAT teams. Perhaps this is the time to kickstart that discussion here on Ricochet.
May '10
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
Of course, people with guns start pouring into my house and I am not supposed to resist?
http://fourthamendment.com/blog/index.php?blog=1&title=swat_team_in_atlanta_kills_92_year_old_w&more=1&c=1&tb=1&pb=1
This old woman was killed when the police his the wrong house.
Here is a thought: Don't do a SWAT entry unless you are 100% sure.
The Police want it both ways: We cannot hold them accountable for not protecting us. There job is to investigate crimes after the fact. Meanwhile, they don't even investigate minor crimes, like something being stolen from a car. Won't even dust for prints.
At the same time, they don't want an armed population, and the laws are stacked against us to defend ourselves.
Jan '11
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
Was my high school civics teacher in error when he taught that the paramount purpose of government is to protect the lives and property of its citizens?
I have since come to learn, as a non-lawyer, that our constitution is replete with nuances and penumbras, and I suppose this elevates judges to the level of deities, without fault.
I’m also curious as to the assumption of responsibility in such cases. Since an officer’s claim of exigent circumstances is virtually infallible in court, what authority does the citizen have to protect his castle against any violent intruder, police or otherwise?
Jul '10
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
Also, "safety" is shooting an intruder.
Isn't the 2nd Amendment specifically for a Citizen's protection against a tyrannical government?
May '10
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
It seems to me that the founders gave us the fourth amendment to prevent the unlawful entry of govt into one's home, and gave us the second amendment as a "firewall", pun intended. It is foolish to get complacent in keeping vigilance against the over-reaching state. I am a police officer, but that doesn't give me a license to intrude wherever I want. I fear physical resistance more than a subpoena, and that's the way it should be. It is wrong and an offense to our ideals to water this sense down...
Dec '10
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
This was such a dumb ruling, there were many ways to rule against the defendant without resorting to this absurd generalized principle.
The fundamental problem here is the Missouri Plan for selecting judges. I don't know the precise makeup of Indiana's commission, but there are always a few members who are appointed by the ABA.
That's right. An unaccountable, unelected guild decides who sits on state courts.
This was a progressive era "reform" which was supposed to remove the politics from the judiciary. Like most reforms from that era, it produced far worse unintended consequences and violated the very nature of our system.
This violates the US constitution in which we are guaranteed a republican form of government. I would argue that it is not desirable to even have a lawyer on the court. They have too much of a conflict of interest. Our legal system is not a natural system the laws governing which are unknowable, it is an artificial system created by the people. All the people, not just the cabal known as the legal profession.
One of these judges (ironically?) was a Gitmo defense lawyer. So I guess everybody has rights except Americans.
Edited on May 14, 2011 at 8:42amRe: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
The only problem is the capricious nature of the court system as it currently operates. As one who was in law enforcement, I've been dismayed in recent years to see how far out of bounds some of the folks who wear the badge have strayed. I don't want to paint with too broad a brush, obviously, but these rogue officers have two distinct advantages; the authority of the badge, and the automatic credibility that position commands in court. I've watched them perjure themselves without recrimination. Remember, the Bill of Rights was fashioned to protect us from the government, not the other way around.
Feb '11
Re: Indiana Supreme Court Rules Against the Right to Resist Illegal Police Entry
There is a piece at http://dailypundit.com/?p=41322 on Governor Daniels' appointment of the judge in that case.