No Right to Resist Unlawful Police Entry: Indiana Supremes
For as long as the notion of individual rights has existed, one of them has been the sanctity one's home. As of Thursday, that's no longer true in Indiana.
For as long as the notion of individual rights has existed, one of them has been the notion that one’s home is sacrosanct. As of Thursday, that’s no longer true in Indiana.
AP (“Court: No right to resist unlawful police entry“):
People have no right to resist if police officers illegally enter their home, the Indiana Supreme Court ruled in a decision that overturns centuries of common law.
The court issued its 3-2 ruling on Thursday, contending that allowing residents to resist officers who enter their homes without any right would increase the risk of violent confrontation. If police enter a home illegally, the courts are the proper place to protest it, Justice Steven David said. “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,” David said. “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.”
Justices Robert Rucker and Brent Dickson strongly dissented, saying the ruling runs afoul of the U.S. Constitution’s Fourth Amendment against unreasonable search and seizure, The Times of Munster reported. “In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally — that is, without the necessity of a warrant, consent or exigent circumstances,” Rucker said.
Both dissenting justices suggested they would have supported the ruling if the court had limited its scope to stripping the right to resist officers who enter homes illegally in cases where they suspect domestic violence is being committed. But Dickson said, “The wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad.”
The court’s decision stemmed from a Vanderburgh County case in which a man yelled at police and blocked them from entering his apartment to investigate a domestic disturbance. The man shoved a police officer who entered anyway and was shocked with a stun gun and arrested.
Valparaiso University School of Law professor Ivan Bodensteiner told The Times that the court’s decision is consistent with the idea of preventing violence. “It’s not surprising that they would say there’s no right to beat the hell out of the officer,” Bodensteiner said. “(The court is saying) we would rather opt on the side of saying if the police act wrongfully in entering your house your remedy is under law, to bring a civil action against the officer.”
Thursday’s decision was the court’s second ruling this week involving police entry into a home. On Tuesday, the court said police serving a warrant may enter a home without knocking if officers decide circumstances justify it. Previously, police serving a warrant had to obtain a judge’s permission to enter without knocking.
The cited Muenster Times article (“Court: No right to resist illegal cop entry into home“) is more colorful, beginning with this lede:
Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.
Across the blogosphere, there’s widespread outrage over the ruling. On the right, NRO’s Michael Walsh terms it a “chilling decision on the gradual erosion of the Fourth Amendment — for your own good, of course” and Vox Day proclaims “this disrespect for both the law and historical precedent is truly astonishing” and concludes, “America is demonstrably less free than medieval England. I tend to doubt that this was what the Founding Fathers had in mind when they revolted against the King’s rule.” Libertarian Bruce McQuain believes this “would be a laughable finding if it wasn’t so serious” and Agitator guest Dave Krueger snarks, “Yeah, if there’s anything we can’t have, it’s the escalation of violence by people who mistakenly think they still have rights under the new modern interpretation of the Fourth Amendment.” On the left, Alan Colmes doesn’t really express an opinion at all, other than to say “This is the second time this week the court decided against the right of citizens in a home.” And Melissa McEwan–well, let’s just say she’s displeased with the state of her “beautiful home state.”
This ruling is binding only in Indiana but may be sufficiently precedent setting to merit review from the U.S. Supreme Court. I wouldn’t be at all surprised, however, to see it upheld and become national policy despite the universal outrage in the blogosphere. The fact of the matter is that the 4th Amendment has long been eroding, to the point where it’s almost as much a dead letter as the 5th, 9th, and 10th Amendments. The courts are effectively a sitting constitutional convention and they’ve decided over the decades that our fundamental rights are an inconvenient barrier to government action.
UPDATE: Walter Olson points to a long, thoughtful reaction by Scott Greenfield. An excerpt:
The case involved a domestic dispute, where the defendant was confronted by police outside his home. There was no basis to arrest him, any more than there is a basis to arrest a man any time he and his wife have an argument, and so the defendant went inside. He refused the police entry, and when they forced their way in, pushed an officer up against a wall. For that, he was charged with misdemeanor battery.
In defense to the charge, the defendant relied on his right to resist an illegal entry into his home, whether by police or anyone else. But the the entry was by police, officers of the state, made it of particular significance. This was the core evil against which the Fourth Amendment protects. Note the use of the past tense.
But this has now been declared archaic, a relic of a past age, of which modern man, and courts, no longer have need. The court says we have other, better, options than to resist: the exclusionary rule, internal police department review and disciplinary procedures and civil remedies. Perhaps this is a penumbra of the “new professionalism” we’ve heard so much about, and have yet to enjoy for ourselves.
The gist of the court’s ruling, however, is that they’re doing this for us, for the children, to safeguard us from violence. Resisting the police escalates violence, and enhances the likelihood that someone will be hurt. They just don’t want us to get hurt, and if the front door to our homes is the cost of our safety, then so be it. As the court tangentially notes, it’s not like law prohibiting police entry actually stops the police from doing as they please, so better to eliminate the law than mandate police adherence.
There is no line more fundamental than that running across our threshold. Courts have been trying to erase if for a long time, bit by bit. The Indiana Supreme Court seizes upon these “exceptions” to conclude that the fundamental rule has been eroding for so long as to make this final step, the erasure of the rule altogether, merely the obvious last slide down the slope.
In addition to the expansion of police power and the erosion of the 4th Amendment, which has been ongoing for decades, it occurs to me that the right of resistance has been going away more generally. In most states, it’s unlawful to use deadly force against a criminal intruder into one’s home absent extraordinary circumstances. Indeed, punching someone who is threatening–much less insulting–you is no longer tolerated. We’re expected to endure most everything and seek remedy after the fact in court.
UPDATE 2: See some interesting discussion in the comments below. To clarify my position on what the law should be here: Police officers entering one’s home without a warrant should be regarded exactly as any other intruder under similar circumstances. So, in the circumstances that led to this case, the homeowner was justified in treating the officer precisely as he would a pushy salesman attempting to enter his home after being denied permission. That means mild physical force, certainly to include pushing, but obviously not lethal force.
Regardless of law, however, there is such a thing as prudence. An assailant, whether he’s a police officer or a stranger, brandishing a weapon should obviously be treated differently than someone presumed not to be armed. And, as a practical matter, police officers have a long history of issuing trumped-up charges, lying about what happened, and getting other officers to lie in corroboration. Resisting the police, regardless of whether one is fully in the right, is not likely to end well.
It’s not an accident. Courts have been systematically stacked with justices friendly to limiting civil liberties and expansion of executive powers. Constitutional law is being eviscerated, while at the same time public approval of our multiple branches of government are barely in the double digits.
There’s a term for his in political science: legitimacy crisis.
@Ben Wolf: It’s actually worse than that: The people have been demanding exactly this. They want the police to have extraordinary powers and are outraged when judges throw out evidence on the mere “technicality” that the accused’s rights were violated.
I’ll bet all the “gun free zones” in America are feeling better already. Police in rural areas are more respectful of homeowners’ rights as they rightfully expect to be met with armed citizens; or at least a high probability of it.
This is another example of good intentions being mixed with more serious unintended results. I feel badly for those of you who will have to bow to this tyranny. That is the primary reason I live far away from the intrusive stench of government.
Justice David has a point about the courts being the proper place to protest an illegal entry, but his ruling does seem to ignore the possibility that you might not survive your encounter with the SWAT team.
I do think you’re right here: “They want the police to have extraordinary powers” Just look at Sheriff Joe Arpaio and his supporters.
When a heavily armed SWAT team kicks down your door at 4 a.m., how do you resist?
“Police in rural areas are more respectful of homeowners’ rights as they rightfully expect to be met with armed citizens”
Oh, I don’t know about that. There are urban cops who can expect to be met with armed citizens, too. Are they all that respectful of homeowners’ rights? If anything, police in rural areas may have less of a “us versus them” attitude, which is ultimately what is the root of the problem here.
Taken to the next step, a judge will rule that people have no legal right to resist illegally entry, even in a court of law.
I sense a bit of a disconnect here.
As I read the article, it seems that the court did NOT somehow invalidate the laws that bar police from entering the home without a warrant. They merely made it illegal to resist the entry with force. They expect the aggrieved homeowner to pursue a remedy, after the fact, in the courts.
I agree with everyone here who strongly condemns this ruling, but I sense it is being mischaracterized.
The law against police entry is NOT eliminated, or am I missing something? Illegal police entries are still illegal – the court merely prevents you from doing anything about it at the time – you can only get redress later in court.
Let me ask the lawyers here – Which side would you rather be on in a case like this? Would you rather defend the homeowner or the Fuzz? And why? Would you go pro bono for either side or go with which side has the deepest pockets?
What if it was your home?
@ James Joyner
There’s a political science term for a nation which ceases operating according to its most fundamental laws and responsibilities: failed state. And you’re right that the populace are complicit. We’ve repeatedly demanded the state curtail our civil liberties, all in the goal of Keeping Us Safe.
Four years ago I would have considered such a thought hyperbole. Now I think it likely that will be the ultimate outcome; as an historian I’m not aware of precedent for a nation reversing this sort of decline.
Actually I’d be interested in hearing thoughts on that.
No, Tano. It simply removes the owners ability to protect their own property, and their family from unwarranted assaults by the government. How many stories about police John Wayne-ing the door of the wrong house do you need to convince you this is a major thing? Now mind, heretofore, the police were under threat of the owner defending him or herself. Now that threat removed, does it strike you as reasonable to expect such evens will only increase in number?
Shorter me: The law isn’t eliminated… merely the largest consequence of breaking it.
Dr,, Joyner, if you consider the 4th, 5th, 9th and 10th amendements dead letters by virtue of Supreme Court fiat, of what point is an actual written constitution? Or the concept of self government for that matter?
If it’s now illegal for an individual to defend their home, then it seems to me no-knock warrants should be seriously scaled back. Given that an individual is apparently now expected to become passive, the police should in almost all cases be required to identify themselves so as not to provoke an unthinking reaction on the part of the homeowner.
If someone is kicking in your door, you generally don’t have time to analyze the situation.
I hope you know better than to expect that.
While I understand and agree with the philosophical arguments against this decision, as a practical matter I find it hard to get upset. Because even if Indianans had the technical right to defend themselves against wrongful police invasion, the fact is it’s insane to pick up a gun or other weapon when the cops are kicking down your door — they’re not going to stop to debate the law, they’re going to shoot you. And while your heirs then have a great lawsuit, you’re still dead.
If SWAT kicks down your door, you do what the cops say and sue them afterwards. Anyone who tries anything else is an idiot. A dead idiot.
@charles austin: “Dr,, Joyner, if you consider the 4th, 5th, 9th and 10th amendements dead letters by virtue of Supreme Court fiat, of what point is an actual written constitution?”
What, indeed. But, again, the problem is that the people aren’t demanding their rights. We’re by and large perfectly willing to grant government excess power in the name of safety, Ben Franklin’s warning notwithstanding.
@wr: You’re certainly right in the case of a SWAT raid. They’re likely to kill your dog, regardless, but they likely won’t shoot you if you’re properly acquiescent. Here, though, it was a case of the police questioning someone, him retreating to his home, and them forcing their way in. He was punished for a perfectly instinctive–and heretofore legal–reaction of quite literally pushing back.
“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter! All his forces dare not cross the threshold of the ruined tenement!” — Pitt the Elder
The most laughable thing about this decision is that they pretend to believe the fiction that any of those alleged “legal” remedies will do anything.
Here’s what they suggest are the remedies that obviates this need to be able to protect your home:
(1) bail, (2) prompt arraignment and determination of probable cause
Who cares? Neither of these “remedies” attempts to rectify any harm done or deter the police from doing it in the future.
(3) the exclusionary rule
This is only a remedy if the police find something in your home that they are going to try and use as evidence.
(4) police department internal review and disciplinary procedure, and
Let me save you some time and tell you how that review will be concluded. The officer “followed departmental procedures” and will be fully reinstated with back-pay.
(5) civil remedies
First of all, it’s your word versus the cop’s (and their partner who will corroborate the BS story they put into the police report). And secondly, thanks to qualified immunity, the police officers are almost never personally responsible for any judgment, so anything you happen to win will come out of the general taxpayer fund, so again, no deterrence factor to the cops at all.
It doesn’t matter whether you obey or not, people are being beaten and shot even when they comply and the police have the wrong address.
When you take a police force and train it for war, tell it that it is war, sooner or later the police start seeing civilians as the enemy.
The courts could be seen as saying that the homeowner cannot argue: “I shot the policeman because I thought he was conducting an illegal search of my home” or cannot argue “I thought the search warrant was illegal so I refused to let the police in and I barricaded myself in my home to protect my family,”
My the same logic as many have display here, one could justify not stopping when a traffic cop pulls you over because you can just say that you did not believe you were speeding and thus, under no obligation to stop.
The courts have left enforcement of illegal search and seizure to themselves. That is why the CIA can ease drop because as long as the information is not used in court, there is no mechanism to enforce the illegal search and seizure rules.
Of course, trying to win a court case might be difficult, seeing as how the police get to write the official report and will generally win in a cops’-word-against-the-homeowner’s situation. Unless you have a recording of the break-in(*) or multiple neighbors’ eyewitness accounts, you’re probably out of luck.
(*)And of course, in many areas, it’s illegal to record the police doing their job.
I think all this is wild overreaction.
A cop gets a call that you’re beating your children. He goes to the home. You, the homeowner decide he has no right of entry. So when the cop tries to enter you shoot him.
Really? That makes sense? The individual — often the accused, often drunk or otherwise impaired — decides on his own that the police are violating his rights? And further decides that he has the right to start shooting?
@superdestroyer – The flaw in your analogy is that we’ve all known for decades that we have a lesser right of privacy in our car. Our home was supposed to be our last final refuge of complete privacy and safety. It was unique in that way.
That example you give is exactly why the dissent wanted to carve out domestic disputes as the exception to the rule, instead of blowing the entire rule out of the water. You give the example that is most sympathetic to the police. But here’s the thing. There will be situations where this comes up that are far uglier situations, where the cops use this tactic to threaten, intimidate and terrorize someone, and there will be no way to legally defend yourself.
michael reynolds, I think the words you’re looking for are probable cause.
You missed the point. Should people have the ability to not do what the police are asking because they believe that the police are wrong. Refusing to stop your car because you believe that you were not spending is the same as refusing to allow the police to enter your home when they believe that they are correct in entering.
superdestroyer – Do you believe that people need to always obey any police order or action, no matter how ridiculous or egregious?
The homeowner in question wasn’t using lethal force, only normal force, so right off you’re using a strawman version of the actual argument.
Secondly, what’s now to stop any common criminal from claiming to be a cop to gain access to a home?
They don’t even need that. There’s already an extigent circumstances exception for situations where such as this.
You do not have to let the police enter if they ask to enter your home. However, if there is a reason to believe that a crime is being commited or someone is in danger, then they can enter.
If someone comes to your door and you answer it, they can always force their way in. Arging that you were scared that the police are not the police and you shot them sounds like the weakest form of excuse of a gang-banger.
superdestroyer – You say that we do not have to let them enter. But under the facts of this case, if you try to physically prevent them from entering, they can charge you with battery.
You do not have to let any form of the government in if they ask. If they tell you that they are entering despite your protest, then your remedy is in the courts, not starting a fight on your door step.
The point is to make it clear that you are not giving consent and ask them why they are entering. Picking a fight with the police is as dump as running from the police.
No, it’s not a strawman. A right to resist is a right to resist. Nothing is said about degree. And the funny thing about resisting with non-lethal force is that it tends to get lethal in a hurry.
superdestroyer – And as I said in my first post in this thread, the “remedies” you have in the courts are a freaking joke. They provide no remedy to the harm, nor do they offer the slightest deterrence for the police from abusing this power in the future.
The deterrent is that any evidence gather could not be used and indictment could be dismissed. Police have a huge number of rules to follow and the motivation to follow them is that whatever they are doing could become void. Threating to beat up a policeman who does not follow the rules sounds like a very foolish deterrent.
superdestroyer – that only acts as a deterrent if they are there to collect evidence. If they are there to threaten, intimidate, harass, steal, or any other purpose (nefarious or not), then the exclusionary rule is not operative.
Explain again to me why people keep voting for the GOP and then bitching when they implement some idiotic policy or a Right Wing jurist slices & dices your rights.
The Indiana S. Ct. is just following the lead of the Federal Courts. The 4th Amendment has long been a joke, and now the 5th Amendment is as well (get your extrajudicial assassination on.) What’s funny is conservatives complaining. I thought we had to destroy our constitutional values to fight terrorists or other brown people. Strange times.
Ben Wolf says: “It doesn’t matter whether you obey or not, people are being beaten and shot even when they comply and the police have the wrong address.
When you take a police force and train it for war, tell it that it is war, sooner or later the police start seeing civilians as the enemy.”
I agree entirely — which is why this court decision makes no difference at all.
One question, though: When this happened to a black Harvard professor a few months back, all the righties around here spent weeks lecturing us on how it was wrong of him to get upset and refuse to cooperate with the cops who had come into his home. And when Obama agreed with him, it was seen as some kind of anti-cop, anti-white coup. So what’s different here, guys?
Ah, thank you, wr. The infamous Henry Louis “Skip” Gates case, where “the police acted stupidly.” How the HELL did we forget that precedent?
The reason for this is that a “living constitution” is no constitution at all. That’s why you constantly see an erosion of the Amendments.
That I think is exactly right. This is all the fallout from the drug war. Police need to go back to being police.
Hmmm. Quite a mystery there.
Of course this, too, relates to the drug war which for a long time was all about shutting down crack in the inner city. So long as it was white cops busting in on poor African Americans it was fine. Now we’ve created a monster. A monster that was of course fed to a large degree by right wing racial paranoia. Willy Horton anyone?
It is long past time to end the drug war. Legalize it, regulate it, tax it. Empty the prisons of drug criminals and tax the legalized drugs and you’ll balance a bunch of state budgets. I mean, just how long does this insanity have to go on? People are talking about Afghanistan being our longest war? No, this is our longest war, and we aren’t winning. All we’re doing is hurting ourselves.
I find it a little bit strange that so many are upset about this court decision. In the real world this has been happening for thousands of years… Even after the Magna Carta (sorry Pitt the Elder, but you were truly delusional if you thought waving a copy of the MC would stop the Kings soldiers at your door.) If the cops want in, they are coming in. Resisting them will, if you are lucky, get you a few stitches on your head, if you are not lucky, it will get you dead. This court has merely acknowledged that reality.
EF, has it occured to you that if they are kicking down the door, they are already under threat of getting shot by a whacked out drug dealer? And that the home-owner going for a gun is the surest way to get shot?
Ben Wolf has it right and this is the real problem folks. You want to get upset at an Institution? Try your state legislature, not the Indiana Supreme Court.
Just a note for anyone hoping this gets overturned on appeal.
Given the appalling direction that 4th Amendment law has gone in during the later years of the Rehnquist Court and, now, the Roberts Court, I’m wouldn’t count on it.
As the old saying goes, if your only tool is a hammer, every problem looks like a nail. In this case, if all you know is the courts (as in the case, apparently, of the Indiana Supreme Court), then that’s the only way to deal with a problem.
I agree with Michael Reynolds. I’m not surprised the courts are going to be reluctant to endorse committing a crime as a self-help measure in response to a perceived invasion of rights.
I can’t speak as to the law wherever you live, but In Pennsylvania (where I live) at least, that’s simply not the case. The law distinguishes between two kinds of force, normal force and lethal force, and provides different situations when you’re allowed to resort to either. You can use normal force to respond to the threat or use of normal force, or initiate normal force to protect your property. Lethal force can only be used to respond to the threat or use of lethal force.
To give a concrete example, suppose while walking down the street, and wanting to tell me about something you come up and grab me by the arm and refuse to let go. I could legally push you or hit you to get you to let go of me. I couldn’t legally pull out a gun and shoot you. Since you are only using normal force against me, I can only use normal force to resist.
A SWAT team comes in helmeted, rifles leveled. That would easily be called lethal. Imagine that they were not police but your average criminal who came breaking through your door pointing a rifle in your face.
Sorry, but as a practical matter the court is right.
Reynold, how about the cop who knows where your attractive (like someone who looks like you could father someone attractive) daughter lives. He has a little more than a quick pat down in mind. He follows her home from work one night. She does not have the right to resist? Don’t say it could not happen because it does.
Wiley I usually ignore you because you’re an idiot. But what the hell:
Is there something witty about consistently dropping the “s?”
I’m not sure which nasty little switch in your empty little mind convinced you that this was something worth saying. Maybe you could explain.
Stormy Dragon, isn’t there something called non-violent resistance? I can bar the door. I can place myself between you and your goal.
Yes, no, maybe. You are basically saying someone assaults you and you may have legal justification to assault them back. I’d say maybe, depends on the circumstances. But it might be that you are both guilty of an assault.
But you have a proportionality issue here. Lethal force may justify lethal force. Nonlethal force may justify nonlethal force. The invasion of intangible right? Sounds like a lawsuit to me.
Actually, Michael, I think Wiley’s comment has some merit. The gist of this decision is that citizens do not have a right to resist illegal entry by police with physical force. Decisions like this one increasingly put law enforcement on an unaccountable plane. Citizens increasingly have less and less ability to resist an increasingly militant and militarized police force, and I think all of us should be very concerned.
A number of people have made that argument, and I’ve responded. That’s not what Wiley was doing.
Rick, in the real world, “You have the right to do what I tell you.” (as I heard a cop tell a buddy of mine) That is the real world.
Also in the real world: When somebody kicks in your bedroom door with a gun and shooting…. What do you do? BLOW HIM AWAY. (as my bussiness rep did)(true story)
What is the difference? If the stalker down the road breaks into your house and you get lucky enuf to hit him,…. you live.
However, if the cops get the address wrong and kick in your door…
YOU ARE FUC*ED!!! or worse…. and probably dead.
They can’t be serious? They are setting the stage for a second Civil War…. The finacial theft of assests , now violating my personal property… FREEDOM? What FREEDOM?
Benjamin Franklin was right… “Those who would sacrafice Liberty for Security deserve NIETHER” If a single american supports this ruling, they deserve evrything the get!!!
@ Wile E. Coyote:
You’re a bitter, teeny-tiny man.
Wile E. just suggested Michael’s daughter is too ugly to be good enough for rape. What else does the guy have to type to be banned?
Actually, that’s incorrect. The author of the opinion is Steven H. David.
Further, let’s look more closely at Daniels, who appointed him, Certainly the man is a fiscal hawk to his credit. But It’s the Bush kingmakers that are working to get him into the race. And you may recal, as I have been saying for over a decade… Bush is at best a centrist.
So… Right winger? I don’t think so. Nice try, though.
Too tired to read the decision right now, but I feel obligated to point out that the common law right to defend your property is nowhere in the Constitution, and moreover many of the Founding Fathers hated the Common Law and believed the Constitution and written law superseded it.
This doesn’t represent an erosion of the 4th Amendment – the Court still notes that the police officers broke the law. It merely eliminates a common law remedy, WHICH HAS NOTHING TO DO WITH THE FOURTH AMENDMENT WHATSOEVER.
In other words, this isn’t a Constitutional issue.
Haven’t read the decision so I don’t know the legal merits, but the article is enough to indicate that the Constitution has nothing to do with it.
I don’t see why the Supreme Court has any rule in anything, it’s an unconstitutional court anyway. The police should obey the Law. They don’t usually, but they are supposed to uphold the Law, even when not on the job. There would be less crime, if people could see the police doing their jobs. How many cops have you caught speeding for no reason? Or not using their turn signals? It’s so common, it’s laughable. Police officers these days are a joke. If a police officer enters your home, and your state has a law that you can defend yourself from people entering your home, you should be able to use whatever force necessary to remove that threat, police officer, or not. I’d agree if there was a Domestic situation, that the police should be able to speak to the alleged victim, and if that was refused, they would have probable cause to enter the home, since the aggressor would then be in essence kidnapping the victim, holding them against their will. But in any other situation, no. We give the police too much power, and unfortunately, in most cases, they do more harm than good.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
But it’s not a constitutional issue.
The British didn’t respect it much, either, as I recall, at least insofar as the colonies.
I could almost agree with this ruling if the police actually faced legal punishment for illegal acts. If a citizen was heavily armed and illegally entered a dwelling and roughed up the occupants, the citizen would face deadly menacing,breaking and entering, and a host of other criminal charges, many of which would be felonies. If a group of citizens did this, additional charges of conspiracy would apply. If the person were an officer and committed such acts (illegally) while wearing a badge, additional charges of “under color of authority” or “deprivation of rights” would also apply. The courts could demonstrate that they were appropriate places to seek redress by plying dozens of felonies on officers that engaged in such acts, and securing convictions. But they do not, and it is likely that they will not. So I believe that this is a terrible ruling.
@Doug I feel like there is a good shot it gets overturned by the SCOTUS (if they hear it). I would think we would get votes to overturn from Scalia, Ginsburg, Breyer, & Sotomayor, leaving just one vote needed to overturn and we might even get more than that.
The ruling is very clear that the entry by the police was illegal. The issue is whether the law allows violent resistance as a remedy for the police breaking the law. The Court said that, in Indiana at least, it doesn’t. This is very easily remedied by the Legislature passing a law allowing violent resistance against unlawful entry. It has nothing to do with the Constitution. It’s all about state law.
With all respect, it’s about the constitution, also….which as you may know, supersedes the state law as regards the rights of the people.
Absolutely it does, but the Constitution is silent as to how the 4th Amendment is to be enforced. States have the power to determine the appropriate remedy available to citizens who are harmed by illegal action by the police. If they want citizens to be able to act with force at the time, they can pass legislation to do so. If they want citizens to only be able to pursue action in the courts, they can do that, too.
Apparently the common law right to resist illegal entry was abandoned by most states during the period form 1940 through the end of the 1960s. It seems it led to too much violence and was deemed against public policy.
Nevertheless the facts in this case demonstrate the the forcible entry by the police was legal and justified.
An important part of the court decision was the statement that his resisting did not in the end keep him from being arrested. May we assume from that view that if you do indeed kill every one of your home invaders the court will indeed have some respect for your castle?
I’m not so sure, Alex. Seems to me one of the implied meanings of the second amendment is fairly clear, particularly in light of the state of mind of the founders in the immediate post-revolutionary world…. The 2nd was put in place to allow us to protect ourselves from government.
And before you (editorial you) start in about ow that’s a stretch, consider the other rights that have been ‘found’ within the Constitution. In light of those, is my suggestion of this implication really such a stretch?
“The 2nd was put in place to allow us to protect ourselves from government.”
Horseshit. The preamble states one of the reasons for the Second: “A well regulated Militia, being necessary to the security of a free State” How do you square that with your “interpretation”?
Militia = citizen soldiers, as opposed to government agents such as police or a standing army. “Free State” = not a tyranny. That’s how. (Note: Even North Korea has armed soldiers and policemen. But they don’t have a Second Amendment. So what right the Second Amendment protects must be different, somehow, from what rights those in every other country, including the most oppressive ones, have.)
The commoners of America had just used guns to throw off the King, and enshrined to right to do so forever after in perpetuity in the Second Amendment. Well, at least until 2011 under this ruling. Read The Federalist Papers if you’d like some insight into how the framers viewed the Second Amendment and the intended relationship between government and the people.
Help me out – which of the Federalist Papers discusses the Second Amendment?
“Militia = citizen soldiers, as opposed to government agents such as police or a standing army. “Free State” = not a tyranny. That’s how.”
If that is meant to secure the argument that the purpose of the Second is allow us to protect ourselves from the government, it fails. See, Daniel Shays (pre-ratification) and Whiskey Rebellion (post-ratification).
The problem, apparently, is that Sam has a somewhat distorted definition of “freedom”.
Defend their rights from whom, I wonder? Oh, of course. Government.
And I suspect I’ve destroyed Sam’s argument, as well.
As Sec Treas Hamilton imposed taxes that many decided to not pay and to take up arms against those government officials who came to collect the taxes.
So Geo Washington called out the militia and led the militia into battle against those resisting legitimate government authority.
Whatever you think the purpose of the second amendment to be, it seems to me that those fellows who were present at the inception of our country have a better understanding of it than you conservatives ever will. Looking at the historical record we see that the militia and their guns were supposed to serve the government, not fight it, when the government faced armed resistance to its authority.
The 2nd is only what you say… if and I say again, ff, you ignore the quotes I’ve posted. You cannot get around them.
So if we take the Federalist papers at face value, we see that the founders intended the 4th amendment to be enforced, at last, by the people themselves by way of the second amendment. Indeed, without the second amendment, the rest, and particularly the forth, are meaningless in terms of the rights of the people. The founders knew better than to place the care of the rights of the people, inseparably in the hands of government. Sadly our courts don’t, if this ruling is to say anything.
Are you able to discern any difference between using arms against “legitimate government authority” (your example) and in opposition to “unlawful police entry” (regarding the case at hand)?
It seems to me that each party involved, the law enforcement officer potentially engaged in illegal behavior and the citizen resisting unlawful entry, must weigh the consequences of their actions. The fear of death should inhibit LEOs illegal behavior (which this decision seems to remove as a consideration) and the potential of a murder conviction on the part of the citizen encourage taking all due caution by all concerned.
Putting all the cards on the side of law enforcement unbalances the equation. Sadly, this has been the trend over recent decades.
Disgusting………………. One step closer to a complete Police State….
The People wont put up with this for long….
Those aren’t about the Second Amendment. None of the Federalist papers are. The Federalist papers were written for the ratification of the Constitution. The amendments came AFTER ratification. (And Hamilton, I might add, opposed the Bill of Rights.)
The references to an armed citizenry are arguments against HAVING A STANDING ARMY – stating that a militia of the citizenry is the preferred option. Many of the Founding Fathers believed that a standing, professional army was a danger to liberty. I happen to agree. But given your history of comments here, I don’t think that you do.
Michael Reynolds wrote:
“I think all this is wild overreaction.
A cop gets a call that you’re beating your children. He goes to the home. You, the homeowner decide he has no right of entry. So when the cop tries to enter you shoot him.
Really? That makes sense? The individual — often the accused, often drunk or otherwise impaired — decides on his own that the police are violating his rights? And further decides that he has the right to start shooting?”
If I understand this hypothetical correctly – Michael is suggesting that, had the Indiana Supreme Court ruled people DO have the right to resist unlawful invasion of the home by law enforcement, then this would be used an excuse for the abuse of unlawful resistance to law enforcement. Whether it be a simple shove, or in the worst case, a drunk with a gun opening fire.
While this hypothetical situation is certainly possible, it is also irrelevant to the substance of this incredibly misguided decision by the IN Supreme Court. This is because idiots will be idiots regardless of the letter of law. That a drunk would invoke an affirmation of the 4th Amendment by the court on this issue as an excuse to start shooting is of no consequence simply because such a person would likely start shooting anyway, regardless of reason. Suggesting otherwise is in effect a declaration that the 4th Amendment should be ignored on the basis that some nut may invoke it as an excuse to transform his home into a giant pillbox. Also, how does reasoning that police will abuse your 4th Amendment rights anyway justify or support a horribly bad decision by the IN Supreme Court? I find this logic flawed, and the willingness to accept it as simply being “reality” disturbing.
Such thinking is an affront and a deep insult to the hundreds of thousands of lives given to reserve this Republic. Perhaps some see that view as antiquated or even naive. I do not.
What about an innocent fellow sitting at the kitchen table cleaning a legally owned firearm – suddenly a SWAT team with the wrong address bursts in without warning, sees the gun and does what they are trained to do – shoot first and ask questions later. What redress via the court system does this person now have after being shot dead?
Law enforcement officers have a job that is undesirable to most of us, to be sure. The safety of law enforcement is important without question. However, a trend in this country has taken hold that seeks to establish law enforcement as a separate and privileged class of citizen with certain immunities from the very Constitution designed to prevent abuses. Invariably eash erosion of rights is justied as protecting the “safety” of law enforcement. This thinking is warped and contrary to what the Framers intended. Law enforcement is a job in which people volunteer. It is not incumbent upon the people to sacrifice freedom for the sake of the safety of a volunteer police force. Rather, it is incumbent on those who volunteer for law enforcement work to accept the risks of that job so that the freedom of the people can be preserved.
If people can’t grasp how serious this bad court decision is, then God help us all because the slippery slope is steep, and hundreds of thousands will have given thier lives for nothing.
Some will no doubt find that sentiment overdramatic or even a joke, and they are more than entitled to their opinion. What they don’t realize is that not taking this seriously means the joke will ultimately be on their children – and their children’s children – who will have to live with dimished freedom. I doubt these future generations will find it all as amusing as some do today.
Sorry for the spelling errors and typos in my previous post – I’m overdue for a good night’s sleep.
I have had a cop fixate on my mom when I was a teen – he worked in a neighboring town, but that did not stop him from coming to our neighborhood and parking on our street to watch us, IN HIS COP CAR! He called our house several times, threatening us, and me when I answered. When my mom called his chief (Bethany, OK) and told him he had a psycho on his force, she was fined $35 for abusive language. She then told the chief he was a psycho, and was fined another $35 for abusive language. This was in the ’70s. My parents ended up having to hire a lawyer, go to court, spend several thousand dollars. The cop ended up without a job, but he put my family through hell, with stalking, phone calls, following, etc. If he had tried to get into our house, what would have happened? His chief defended him to the end. This experience left me terrified of cops. Then I started dating a man when I was in my 30s – his wife had left him for a cop, so then I was followed and threatened by the Yukon, OK cops, because the ex-wife was sleeping with them. I had to move out of my home town. You have no idea of the way they treated me, scared me and harassed me to stop me from going out with this man. I firmly believe 90% of them are psychos with guns, and so help me, if they ever try to enter my home, I will die, either from fright, or from fighting back. My husband’s brother is a cop in Texas, and I have never seen such a porno collection, or such a morally bankrupt person. He slept with my husband’s first wife, which of course caused a divorce. What brother sleeps with his own brother’s wife?? A COP! This decision scares me, and I have a right to be scared after what I have experienced here in Oklahoma.
No. That’s because there IS none.
Since they talk about the need for an armed citizenry, it seems clear that they are revelatory to why the second was written as such.
But it also speaks directly to taking up arms in response to governmental betrayal. Did you miss that?
My question about discerning a difference between resisting legitimate government authority and resisting unlawful police entry was directed at Ken. He cited the suppression of the whiskey rebellion as being somehow germane to this case. I personally believe there is a tangible difference between when government agents go after criminals, and when they act as criminals.
The Constitution, and for that matter any written legal document, including state charters and state constitutions (which most were based off the federal Constitution)were formed not out of a blank slate but out of a philosophy generally based on a good study of history and some real life experience. To really understand the U.S. Constitution one must go to THE document of documents, The Declaration of Independence. Read the whole document and get a good grasp of history leading up to the document and why it was written the way it was and then you’re probably ready to give a weighty opinion on the matter. To look at the Constitution with 21st Century eyes and a modern mindset is why we error so badly in our court decisions such as this one. The government is like a fire….. it can AND WILL become a fearful master if given the chance. When courts stack the deck against the people and force them with the burden of proof against well armed and well funded government agencies, then you have completely missed the proper understanding of the founding fathers and have foolishly and unwittingly placed the people in a dangerous place. To see a difference of distinction when it comes to rights of force between a fellow lawful abiding citizen and a police officer is the quintessential 21st Century American folly. If there is to be any error in judgement between the man in the street and the officer with arresting powers, then that error is to be unquestionably on the side of the citizen, the man in the street. To not grasp this thought tells me that we have a serious educational problem in the U.S.. It has gotten so bad that it is bordering on the ridiculous. In fact, I would say that the difference between a plow boy of the 18th century colonies and his knowledge and understanding of the founding fathers writings and a 21st Century Harvard Profesor on the Constitution is like comparing a disciplined and well groomed stallion with a floundering Jack-Ass, hip deep in the “big muddy”.