Court: No right to resist illegal cop entry into home

[mswaim]

I guess the question is; who determines if the arrest is unlawful? Or that the warrant is defective?

In the heat of the moment, most people do not possess the knowledge or experience to make that decision.

If the attempted arrest is clearly bogus (even to a layperson) then I suppose I would agree, however - and it's a big however - you only need to read a few posts in this section of the forum to see just how ill-informed (legally-speaking) most people are.

When you decide to resist a peace officer, or take up arms in defense of what you feel is an unlawful action, you best have your life insurance paid up.

Most case law is determined after the fact, so you may be famous for determining future actions, but you will be viewing it from the grave.

 

[FordSVTFan]

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

Do you have any cases from this Century? How about from even in the last 40 years? These cases are over 80 years old and have been negated by federal statute.

 

[MLS]

Good ol public policy, always changing...

 

[olefafl]

I guess the question is; who determines if the arrest is unlawful? Or that the warrant is defective?

In the heat of the moment, most people do not possess the knowledge or experience to make that decision.

If the attempted arrest is clearly bogus (even to a layperson) then I suppose I would agree, however - and it's a big however - you only need to read a few posts in this section of the forum to see just how ill-informed (legally-speaking) most people are.

When you decide to resist a peace officer, or take up arms in defense of what you feel is an unlawful action, you best have your life insurance paid up.

Most case law is determined after the fact, so you may be famous for determining future actions, but you will be viewing it from the grave.

Good point.

Do you have any cases from this Century? How about from even in the last 40 years? These cases are over 80 years old and have been negated by federal statute.

Now now don't get picky ;-)
I think the case he was talking about was the LEOs was at the wrong house on a search and get hurt by the home owner. I will see if I can find it later.

 

[FordSVTFan]

Now now don't get picky ;-)
I think the case he was talking about was the LEOs was at the wrong house on a search and get hurt by the home owner. I will see if I can find it later.

:thumbsup:

 

[Junior00]

No Right to Resist Rogue Cops in Indiana - Hit & Run : Reason Magazine

Barnes was convicted of battery on a police officer, resisting law enforcement, and disorderly conduct. He appealed his convictions on the grounds that the jury should have been instructed about "the right of a citizen to reasonably resist unlawful entry into the citizen's home." The Indiana Supreme Court, however, concluded that "public policy disfavors any such right," since "resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."

Dissenting Justice Brent Dickson argued that "the wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad." Given the circumstances of Barnes's arrest, he said, the court could have ruled that "a person's resistance to police entry in the course of investigating reports of domestic violence" does not qualify as "reasonable." The other dissenting justice, Robert Rucker, argued that the right of reasonable resistance is grounded in the Fourth Amendment as well as common law.

Unless I'm missing something, the court need not have addressed this issue at all. It could simply have ruled that the officers' entry into the apartment was lawful in light of the exigent circumstances created by the domestic dispute and the possibility of violence, especially since Mary Barnes had called 911 and arguably invited them in. The majority suggested as much but inexplicably decided the much broader question of whether Richard Barnes would have been entitled to resist if the entry had been illegal. "Because we decline to recognize the right to reasonably resist an unlawful police entry," the majority said, "we need not decide the legality of the officers' entry into Barnes's apartment."

That seems backward to me, and it suggests a hankering to repudiate a principle that strikes the justices as an outmoded impediment to law enforcement but strikes me as a straightforward extension of the fundamental right to self-defense. According to the court's reasoning, a homeowner would not even have a right to defend himself against rogue police officers who robbed people under the cover of official business. Indeed, the concern about escalating violence would count against the right to defend yourself against anyone, with or without a badge.

Sums it up pretty well. The courts screwed the pooch on this decision as it very broad and undefined. Just as he stated, what if rogue officers wanted in to do harm to your or your family. I realize that it is far fetched, but you have to realize all areas must be covered because at some point, they will become a reality with the way our society is. So am I held accountable even if officers escalate the situation? Is final comments pose good questions.

 

[Mach1USMC]

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.

The issue in this case is easy to fix- the "vic", can take his case to court and can solve it with a civil remedy.

What about THIS case? Where is this guy supposed to get HIS civil remedy? THIS case is why the ruling is so dangerous. If a warrant issued is deemed illegal it is a violation of the 4th amendment- correct?

Former Marine killed by SWAT was acting in defense, family says - KGUN9 On Your Side, Tucson News, Weather & Sports

 

[Mach1USMC]

Do you have any cases from this Century? How about from even in the last 40 years? These cases are over 80 years old and have been negated by federal statute.

Not to be a jerk but the law is the law is it not? The Constitution is a legal document is it not? How old is it? How old is the Bill of Rights?.... just sayin'

 

[FordSVTFan]

The issue in this case is easy to fix- the "vic", can take his case to court and can solve it with a civil remedy.

What about THIS case? Where is this guy supposed to get HIS civil remedy? THIS case is why the ruling is so dangerous. If a warrant issued is deemed illegal it is a violation of the 4th amendment- correct?

Former Marine killed by SWAT was acting in defense, family says - KGUN9 On Your Side, Tucson News, Weather & Sports

They had a valid narcotics warrant. The subject had a gun. Although there is some discrepancy as far as what occurred in the home, there does not appear to be any legal issues with the warrant. It seems there are a lot of details missing.

Not to be a jerk but the law is the law is it not? The Constitution is a legal document is it not? How old is it? How old is the Bill of Rights?.... just sayin'

The valid law is the law. Case law from the 1800s and early 1900s that has been overturned or negated with more up to date statutes isnt the law.

You are comparing apples to hand grenades. The U.S. Constitution and its amendments, until amended, is a set of instructions on how things are to be handled. The law is formed from the cases arises out of Constitutional arguments and valid statutes.

Case law changes quit often, all it takes is the ruling of a higher court. That isnt the case with the U.S. Constitution and it's Amendments.

I'm just sayin'

 

[Satyr]

I have to say that, if the Justice would have voiced his opinion in a different way, I don't think this would be as outlandish as it seems. I can understand the argument of the courts, and I can also recognize a citizen's right to protect his property and feel safe in his own home. However, in most cases where LEOs enter a house, there is going to be a good reason, and there should be no hindrance to that, again, in most cases. Though, in the cases of drugs/violence, can't officers enter on their own accord as it is? I thought that if probable cause were had, they are able to enter a house at will, under the premise of that cause. Plus, I imagine a search warrant would be had in many of these cases, so this (IMO) must be more for spontaneous cases. But, again, if that's the case, I thought LEOs could enter the premises anyways, under the guise of probable cause?

I have to agree that this is a slippery slope. When one starts interpreting what is considered finite in a different light, where does it end? What can alternative amendments be otherwise interpreted as? Perhaps most pressing/concerning: what new validities will be assumed with the second amendment (which has already been an overly hot topic in the last decade)?

 

[mswaim]

The existence of probable cause provides the catalyst for a warrant, but without the warrant, entry/search would not be legal - unless of course the situation escalates and circumstances develop that provide exceptions to the rules surrounding searches.

 

[FordSVTFan]

The existence of probable cause provides the catalyst for a warrant, but without the warrant, entry/search would not be legal - unless of course the situation escalates and circumstances develop that provide exceptions to the rules surrounding searches.

There are plenty of exceptions to the warrant rule. Most often exigency is claimed or the fleeing felon.

 

[silver03svt]

There are plenty of exceptions to the warrant rule. Most often exigency is claimed or the fleeing felon.

Come 'on Adam.....you and I both know too well that felons don't run from the Poh-leese!

 

[mswaim]

There are plenty of exceptions to the warrant rule. Most often exigency is claimed or the fleeing felon.

Exactly ! You know that and I know that, however most do not - which leads us back to my original position that the majority of citizens are not informed enough to be debating such matters at their front door with a police officer/s.

Let the situation run its course, then seek satisfaction after-the-fact.

 

[Satyr]

The existence of probable cause provides the catalyst for a warrant, but without the warrant, entry/search would not be legal - unless of course the situation escalates and circumstances develop that provide exceptions to the rules surrounding searches.

I was actually referring to objects in plain view when I said probable cause. It is my understanding that an illegal substance, if in plain view, is reason enough (i.e. probable cause) for an LEO to enter a premises. In these cases, a warrant would not be necessary, right? From what I read, there is the Horton stipulation that the LEO must have lawful access to the object, but I am not quite sure what that means. If something is in plain view through a window in a private household, does that give the LEO reasonable cause to enter the premises?

Plus, I am pretty sure that LEOs are able to search the immediate premises of a criminal if said criminal is being arrested within those premises. Whereas, some of the exigent circumstances would be immediate danger to a person/the officer/property, which allows more of a temporary seizure, rather than a search, IIRC.

 

[Satyr]

There are plenty of exceptions to the warrant rule. Most often exigency is claimed or the fleeing felon.

Speaking of warrants, what exactly is a "constructive search" (as opposed to a figurative search)? There seems to be some discrepancies with what I found while reading.

 

[mswaim]

I was actually referring to objects in plain view when I said probable cause. It is my understanding that an illegal substance, if in plain view, is reason enough (i.e. probable cause) for an LEO to enter a premises. In these cases, a warrant would not be necessary, right? From what I read, there is the Horton stipulation that the LEO must have lawful access to the object, but I am not quite sure what that means. If something is in plain view through a window in a private household, does that give the LEO reasonable cause to enter the premises?

Plus, I am pretty sure that LEOs are able to search the immediate premises of a criminal if said criminal is being arrested within those premises. Whereas, some of the exigent circumstances would be immediate danger to a person/the officer/property, which allows more of a temporary seizure, rather than a search, IIRC.

There are shades of gray even with your examples. If an officer is standing in front of an open door talking with the owner and he sees an illegal substance in plain sight, he can enter to secure that evidence. If he is peeking through windows and sees the same substance, but the door is closed and no one is home, he would need to obtain a warrant. if the owner is home, and the officer sees the owner pick up the substance and run for the bathroom, he could force his way in to secure the evidence. A search can be done of the immediate area surrounding a homeowner if he/she are arrested inside the house, however the search cannot extend outside of the immediate area or into areas not within the officers line of sight, unless he can articulate a darn good reason to do so.

All of this again supports my position that unless you are highly trained in such legal matters, you are best off to stand back and let the courts figure it out after-the-fact.

 

[CPRsm]

Sorry but weed is not enough of a crime to require forced entry. Let alone only "smelling" it. A scream, or someone obviously in danger in need of help, a gun shot, etc. I think if you are going to do it it should be held as high as drawing your weapon. Had better be a life at stake. This ruling is just a way to bend the rules in their favor and isn't needed.

Gun shot goes off, officer hears it and forcibly enters the home. Subject is shot and arrested. Owner claims his 4th amendment was violated. Does anyone think this ruling is needed in any way shape or form to determine what would happen in this court case ? Nobody is going to think his 4th was violated if another life was in danger.

 

[mswaim]

Depends on the amount of weed. :shrug:

 

[Satyr]

All of this again supports my position that unless you are highly trained in such legal matters, you are best off to stand back and let the courts figure it out after-the-fact.

Where I can agree with this to an extent, I do not want an officer coming into my home for no reason, whether the courts side in my favor after-the-fact or not. I realize it is very unlikely that an LEO would ever enter a premises without at least some reason, but should it happen, I would be pretty pissed off because sorting it out later is not an immediate priority to me; having my civil rights violated without cause, on the other hand, is a direct priority to me (and most others, I would imagine).

By the way, are you an LEO or attorney? You seem to know quite a bit about this type of stuff.