Court: No right to resist illegal cop entry into home

[BleedBlueOval]

Court: No right to resist illegal cop entry into home (Updated 6/16/2012)

INDIANAPOLIS | 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.

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry.

"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."

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

The court's decision stems from a Vanderburgh County case in which police were called to investigate a husband and wife arguing outside their apartment.

When the couple went back inside their apartment, the husband told police they were not needed and blocked the doorway so they could not enter. When an officer entered anyway, the husband shoved the officer against a wall. A second officer then used a stun gun on the husband and arrested him.

Professor Ivan Bodensteiner, of Valparaiso University School of Law, said 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."

Justice Robert Rucker, a Gary native, and Justice Brent Dickson, a Hobart native, dissented from the ruling, saying the court's decision runs afoul of the Fourth Amendment of the U.S. Constitution.

"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. "I disagree."

Rucker and Dickson suggested if the court had limited its permission for police entry to domestic violence situations they would have supported the ruling.

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."

This is the second major Indiana Supreme Court 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. Prior to that ruling, police serving a warrant would have to obtain a judge's permission to enter without knocking.

Court: No right to resist illegal cop entry into home : Elections
Comments?

 

[Stroszek]

"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."

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."

I don't believe I disagree with any of this.

 

[TBCobra]

Quote:
"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."

Quote:
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."

I don't believe I disagree with any of this.

Like that will ever follow through.

 

[dsouthall77]

hell no, another atempt to bypassing the 4th Amendment which guards against unreasonable searches and seizures. In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry. Bull shit! guess their is no shuch thing anymore as personal property either right, If so why do I have to pay that tax. And the part where "police act wrongfully in entering your house your remedy is under law, to bring a civil action against the officer" was he on the job? yes must be department policy as i see it. Do I agree with what man did no, you mess with cops they bring the wooden shampoo.

 

[NyteByte]

There is no ambiguity in the 4th amendment and the very notion of a “modern” interpretation is absurd. It’s timeless.

This is a slippery slope we’re on and it’s only getting worse.

 

[FX4 SAPPER]

I don't believe I disagree with any of this.

So say a police officer just decides to enter your home and rob you. Hey hes got a badge right? why resist? just sue him in court after he leaves. If he leaves. Meanwhile as your Constitutional rights are being trampled you are advocating that the police are above the law of the land no matter what our Constitution says. Blatant disregard of the 4th amendment. Please tell me you are not an LEO.

 

[FordSVTFan]

After reading the underlying case I understand what they are trying to accomplish, even though I do not agree with it. They are trying to prevent people from attacking officers who they believe are not in their right to enter the home. The court believes the lesser evil is to allow the search, if the search is unconstitutional then any evidence will be thrown out according to Wong Sun and then there is additional remedy against the police in a civil suit, and no one is harmed by a fight at that time.

I think this Justice's wording is extremely ill-conceived and he could have gotten to the same goal without his blatant support of illegal searches.

 

[Stroszek]

So say a police officer just decides to enter your home and rob you. Hey hes got a badge right? why resist? just sue him in court after he leaves. If he leaves. Meanwhile as your Constitutional rights are being trampled you are advocating that the police are above the law of the land no matter what our Constitution says. Blatant disregard of the 4th amendment. Please tell me you are not an LEO.

I do take issue with my 4th amendment rights being trampled. I only interpret this as saying that physical resistance is not an acceptable response. And it isn't. You can rest assured I would vigorously pursue the unlawful search and seizure of anything in my home.

 

[Canebrake]

That the court removed virtually any possibility of criminal charges for violations of our Fourth Amendment rights, while giving Indiana police agencies a blank check to ignore the amendment is obscene to me. A person can no longer defend his home if the invaders are wearing a badge? Perhaps the problem lies not in the right and natural tendency of a man to defend his castle, but in the broadening of police powers and the erosion of our rights as free people.

I have faith that this ruling will be overturned in the SCOTUS, but if not... Well let's hope the stripping of this inalienable right does not go ignored by the citizens of this once great nation.

"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."

 

[FordSVTFan]

I do take issue with my 4th amendment rights being trampled. I only interpret this as saying that physical resistance is not an acceptable response. And it isn't. You can rest assured I would vigorously pursue the unlawful search and seizure of anything in my home.

That is exactly what the court is saying.

It is akin to fighting with the police officer on the side of the highway over a speeding ticket a driver believes he didn't deserve. That is not the time or place to challenge it.

If the search is eventually deemed unconstitutional then all evidence is thrown out in accordance with Wong Sun v. United States (Fruit of the Poisoness Tree).

I do believe everyone should protect their right not to be illegally searched or seized. But doing so with violence is not the answer.

 

[00streetfighter]

That is exactly what the court is saying.

It is akin to fighting with the police officer on the side of the highway over a speeding ticket a driver believes he didn't deserve. That is not the time or place to challenge it.

If the search is eventually deemed unconstitutional then all evidence is thrown out in accordance with Wong Sun v. United States (Fruit of the Poisoness Tree).

I do believe everyone should protect their right not to be illegally searched or seized. But doing so with violence is not the answer.

Nicely said. I couldn't agree more.

 

[swoosh_stang]

That is exactly what the court is saying.

It is akin to fighting with the police officer on the side of the highway over a speeding ticket a driver believes he didn't deserve. That is not the time or place to challenge it.

If the search is eventually deemed unconstitutional then all evidence is thrown out in accordance with Wong Sun v. United States (Fruit of the Poisoness Tree).

I do believe everyone should protect their right not to be illegally searched or seized. But doing so with violence is not the answer.

I normally find your posts about subjects like this to be very educating, but I find it hard to agree with your statement that a police officer illegally entering someone's home is "akin to fighting with the police officer on the side of the highway over a speeding ticket a driver believes he didn't deserve." I agree that it could be compared to resisting an officer from doing an illegal search of your car on the side of the road, but it is not, in my opinion, comparable to fighting with an officer over a ticket.

 

[FordSVTFan]

I normally find your posts about subjects like this to be very educating, but I find it hard to agree with your statement that a police officer illegally entering someone's home is "akin to fighting with the police officer on the side of the highway over a speeding ticket a driver believes he didn't deserve." I agree that it could be compared to resisting an officer from doing an illegal search of your car on the side of the road, but it is not, in my opinion, comparable to fighting with an officer over a ticket.

The thing you are overlooking is that the person being/their premises being searched is not the arbiter of whether the search is illegal or not. If that were the case, every drug dealer and pedophile would fight with L.E. at the door and say their search is unconstitutional.

The fact remains that there are solid remedies in place to an illegal search, once that determination is made by a judge, not the subject of the search. Therefore, there serves no purpose get into an altercation with L.E. during the search.

 

[BlwnSn8k]

The thing you are overlooking is that the person being/their premises being searched is not the arbiter of whether the search is illegal or not. If that were the case, every drug dealer and pedophile would fight with L.E. at the door and say their search is unconstitutional.

The fact remains that there are solid remedies in place to an illegal search, once that determination is made by a judge, not the subject of the search. Therefore, there serves no purpose get into an altercation with L.E. during the search.

This makes sense to me. As strong as I feel about an LEO entering your residence for any circumstance other than emergency or when given consent , the fact is that attacking/physically forcing the officer out of the home is not the way to approach the situation. If an LEO does enter the home illegally, the law will support you in the end.

The defendant in that case should have thought more about the decision to fight the officer before stepping down that path. Stupid move on his part.

 

[FordSVTFan]

This makes sense to me. As strong as I feel about an LEO entering your residence for any circumstance other than emergency or when given consent , the fact is that attacking/physically forcing the officer out of the home is not the way to approach the situation. If an LEO does enter the home illegally, the law will support you in the end.

The defendant in that case should have thought more about the decision to fight the officer before stepping down that path. Stupid move on his part.

Exactly the point the court is making. It is just unfortunate that justice used such inappropriate wording of his opinion.

 

[BleedBlueOval]

there is a case law where the SC has sided with civilians using deadly force to defend themselves against the state.

 

[FordSVTFan]

there is a case law where the SC has sided with civilians using deadly force to defend themselves against the state.

Please post the link so we can compare apples to apples.

 

[mswaim]

The bottom line is pretty simple; the court is saying you cannot win (short-term) by resisting an illegal entry/search of your property.

If you choose to resist, the officer will escalate the necessary level of force based on your actions. He will summon backup and eventually you will be removed by force, seriously injured, or worse.

Only a fool takes on the police in that arena. A shrewd, thinking person takes them into the courts where search/seizure cases come under great scrutiny.

Believe it or not, they are human and do make mistakes. The court is saying the place to debate the accuracy of their work is not in your living room, rather allow a higher power to decide.

 

[NyteByte]

I think this Justice's wording is extremely ill-conceived and he could have gotten to the same goal without his blatant support of illegal searches.

Exactly. It's almost as if the Justice's wording doesn't entirely match the case.

The cops were there on a domestic disturbance call and according to the story, it seemed that they may even have had probable cause to enter the home.

The ruling is just too broad and needs to be better defined, because it comes off as sounding like "cops can enter your home at any time, do anything they want and you can't stop them".

 

[olefafl]

Please post the link so we can compare apples to apples.

Here are a few from another site that we are talking about this case.
There is also a LEO in Crown Point, IN that wants to do door to door checks.

“Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”

“An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.

“When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.

“These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence.” Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.

“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).

“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).

“One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).

“Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that ‘a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’ There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all ... it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.

As for grounds for arrest: “The carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act of itself, lead to a breach of the peace.” (Wharton’s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy v. Lashley, 5 W. Va. 628, 41 S.E. 1