Resisting the police

[Webleymkv]

With all the discussion about no-knock warrants, wrong address raids, and police impersonation, I think we're missing what might possibly be the most insidious part of all this: greater ability for crooked police to harass people.

Now, contrary to what some have said, this ruling did not completely gut the 4th Amendment. Any evidence obtained during an illegal search is still inadmissible in court. What it does do, however, is provide an avenue for a crooked cop who has it out for someone to fabricate charges against that person.

For example, suppose we have a particularly unstable cop who recently went through a messy divorce. Said cop decides that, for whatever reason, he wants to kick in his ex-wife's door and do whatever his imagination can produce to her and that he'll do it in uniform while he's on duty. Upon kicking in her door, his ex-wife's new boyfriend recognizes him and tackles him attempting to protect his girlfriend. Said unstable cop radios for backup and the boyfriend is arrested and charged with battery of a police officer, disorderly conduct, disturbing the peace, and whatever other generic charge they might care to toss at him.

Upon further investigation, it is learned that the unstable cop had no warrant, probable cause, or any good reason at all to even be at his ex-wife's house. However, none of that matters for the boyfriend because the legality of the officer's actions cannot be used as a defense. Further suppose that this unstable cop is a member of a corrupt department in which he's popular and that his fellow officers didn't like is ex-wife or, by extension, her new boyfriend. Because of this, the other officers in the department sweep the unstable cop's actions under the rug but decide to leave the boyfriend to swing in the wind. End result: the boyfriend winds up in jail for defending his girlfriend while the unstable cop, who is the real villain in the situation, remains free to do as he wishes with the boyfriend out of the picture. I don't know about the rest of you, but the above situation sounds much more likely than SWAT teams busting down the door of the wrong house.

[mehavey]

For example, suppose we have a particularly unstable cop who recently went through a messy divorce. Said cop decides that, for whatever reason, he wants to kick in his ex-wife's door and do whatever his imagination can produce to her and that he'll do it in uniform while he's on duty. Upon kicking in her door, his ex-wife's new boyfriend recognizes him and tackles him attempting to protect his girlfriend. Said unstable cop radios for backup and the boyfriend is arrested and charged

For what it's worth, the ex-husband cop would wind up in jail, not the boyfriend in the scenario above. No question in my mind. He acted outside the color of the law no matter how you play it.

More insidious would be the case of the ex-husband cooking up falsified drug bust search warrant cause for his buddy cops to use. Then it would be under color of law and a lot messier -- until found out in front of a jury.

[K_Mac]

webleymkv I think the scenario you give is not too far fetched. The ruling that says there is no right to resist unlawful entry by police leaves a citizen at the mercy of the the person committing the crime, and at the mercy of the courts and the legal system. An armed intruder breaking into my home should expect to met with deadly force. An armed team of police breaking into my home may not be met with force, since that would likely get me killed, but they better damned well have legal cause or I will spend every nickle I have to see those involved are held accountable. The problem with that is, if they are protected by the system, what recourse do I have?

This ruling may not completely gut the fourth Amendment but it certainly does it violence. The burden is probable cause protecting against unreasonable intrusion into my affairs. This ruling doesn't even require legal cause.
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.

[Webleymkv]

For what it's worth, the ex-husband cop would wind up in jail, not the boyfriend in the scenario above. No question in my mind. He acted outside the color of the law no matter how you play it.

I wish you were right, I really do. Unfortunately, I'm not so confident. In the situation I describe, the boyfriend would have two options: A. Claim that the charges against him are completely false because he did not resist law enforcement (this would be a lie), or B. Claim an "affirmative defense" in that he did indeed resist law enforcement, but mitigating factors left him with no choice but to do so in order to defend himself and/or his girlfriend. Unfortunately, the IN Supreme Court ruling basically states that resisting law enforcement is never justifiable regardless of mitigating factors. While any evidence obtained in the home would be inadmissible since the cop never had legal justification to kick in the door to begin with, the resisting charge would still stick because, according to the IN Supreme Court, the legality of the cop's entry has no bearing on the resisting charge.

Now, if the DA in the hypothetical jurisdiction has any sense and/or moral compass, he/she might drop the charges. Likewise, if the other officers in the department have sense/moral compasses they might not back whatever story the unstable cop might cook up. However, those are both very big if's (remember the whole fiasco in Canton OH not all that long ago) and not one's that I'd like to stake my freedom on.

[Rifleman1776]

Long responses and many 'supposed' scenarios mean nothing.
In the end, the wants of the police and prosecutor are what decide if the citizen is charged and arrested. Then the decision of the judge affects what comes next. Fact is, most of us do not have the big bucks necessary to hire the lawyers and pay all attendant costs that will come with an arrest. Many (most?) of us would roll over, plead guilty to a misdeamor, pay a fine and, hopefully, get probation for an wrong commited by a police officer.
Quote the Constitution and you will be labeled a nut case or militia terrorist.

[mehavey]

A. Claim that the charges against him are completely false because he did not resist law enforcement (this would be a lie),

Not so, and this is critical. The cop had to enter under the color of law to have status as a peace officer. What you described was an angry ex-husband committing B&E and assault-with-intent. I saw nothing as to how he would have been able to say he was acting as a cop in enforcement of any law.

DON'T allow a single court's idiotic ruling in a single district to affect your common sense and blanket defensive authority-to-protect.

[jcsturgeon]

Tactically speaking I can't imagine a situation where you could shoot a police officer in accordance with the Castle Doctrine and live to tell the tale. I mean, it's one of those things where you ought to have the right but that it's best left unused. Discretion is the better part of valor and all that.

Such a law though could protect you if a police officer claimed assault if they were injured during your detainment etc.

I think if a police officer or officers illegally enter your home you should take careful notes when they leave and sue them, the department, the city and the state for every possible cent you can... but shooting at them is not going to end well for you.

[mehavey]

"Shooting" notwithstanding...

So you would simply stand there while this guy beats hell out of your fiance and concludes by raping her in front of you (and likely her children as well)?

Tell me it ain't so.

[Glenn E. Meyer]

Let's get back to realism. In any state, a police officer attacking you as dsecribed would be a criminal.

[Webleymkv]

Originally posted by mehavey

Quote:
A. Claim that the charges against him are completely false because he did not resist law enforcement (this would be a lie),

Not so, and this is critical. The cop had to enter under the color of law to have status as a peace officer. What you described was an angry ex-husband committing B&E and assault-with-intent. I saw nothing as to how he would have been able to say he was acting as a cop in enforcement of any law.

DON'T allow a single court's idiotic ruling in a single district to affect your common sense and blanket defensive authority-to-protect.

The problem is, the IN Supreme Court ruled that whether or not the cop was acting under color of law is irrelevant. If the cop in question cooks up some story afterward as to why he had reason to enter, such as that he was driving by and thought he heard someone scream inside the house or smelled methanphetamine, whether or not his story meets the definition of probable cause is irrelevant as far as resisting charges go. Unless you can prove that the cop is lying, a rather difficult thing to do, you'd be up a creek without a paddle insofar as the resisting charges are concerned.

Also, this single court's idiotic ruling happens to affect the entire state of Indiana which also happens to be the state in which I live.

So you would simply stand there while this guy beats hell out of your fiance and concludes by raping her in front of you (and likely her children as well)?

Tell me it ain't so.

I don't think this was directed at me, but I'll answer it anyway. No, I couldn't just stand by and watch anyone, cop or not, do these sorts of things to my loved ones. However, this ruling puts me in a very uncomfortable predicament of possibly being forced to choose between what I, and most other people, believe to be right and what is legal.

Originally posted by Glenn E. Meyer

Let's get back to realism. In any state, a police officer attacking you as dsecribed would be a criminal.

You're right, it most certainly would be criminal. However, the fact remains that, in the situation I describe, a police officer would be the one perpetrating the crime. Because, according to the Indiana Supreme Court, one has no right to resist a police officer's entry into his/her home regardless of the legality of that entry, determining the officer's intentions would come down to the boyfriend's word against the cop's. Since his lack of a warrant or probable cause has no bearing on the resisting charge, the boyfriend's only hope to defend himself against the resisting charges would be to prove that he did not resist at all in the first place, which would be a lie because he did indeed resist allbeit for good reason, or to prove that the cop's intentions were not as the cop says they were. I don't know about anyone else, but having my freedom depend on whether a jury will belive my word or that of a sworn officer of the law is not a situation that I see as favorable to me, and that is the crux of the issue in my mind: this ruling shifts too much of the burden of proof away from the state and onto the defendant.

[Webleymkv]

Gov. Daniels signed SB1 into law late last night. The law will take effect July 1.

http://www.nwitimes.com/news/state-a...0ca556944.html

[btmj]

One possible way to reduce the errors (overall) is to make it so that while the city/county/state/etc., is responsible and pays (or their insurance pays) when found liable in court, the individual officers and their supervisors would have their wages garnished to pay back the city/insurance company, etc.

In some branches of engineering, people can be held criminally negligent for engineering mistakes which result in injury or death. An engineer who signs a drawing is taking personal responsibility for the integrity of the design.

If a person has a security clearance, releasing information into the public can result in prison time, even if the release was accidental. It is not necessary for the prosecution to prove intent, they must only show negligence.

If a US company has a contract to supply weapons or defense services to a foreign nation, these transactions are covered by ITAR regulations, which are very complicated and change yearly. Violations of ITAR are a felony, punishable by prison, and again it is not necessary to show intent.

If a person has knowledge about a company that would affect the price of its stock, knowledge that is not generally known to the public, that knowledge is considered "insider knowledge". If the "insider knowledge" is used by that person to trade stocks, or is exchanged with another for some quid pro quo arrangement, everyone involved could go to jail. Even people who had no idea that information would be used to trade in stocks are still criminally liable. Once again, it is not necessary to show intent.

All of these examples relate to negligence on the part of professionals... negligence that is punishable by jail time.


So why are we talking about garnishing wages, and suing the city? Maybe busting into the wrong house should be considered a matter of criminal negligence?

If Officers might be facing real jail time for errors in judgment, they might be more careful. Businessmen, engineers, airline pilots, surgeons, pharmicists, all can face criminal penalties for an "honest mistake" i.e. negligence... why not the police?

[Conn. Trooper]

If Officers might be facing real jail time for errors in judgment, they might be more careful. Businessmen, engineers, airline pilots, surgeons, pharmicists, all can face criminal penalties for an "honest mistake" i.e. negligence... why not the police?

Outside of airline piots and surgeons, none of the above make split second decisions. I have never heard of any doctor, anywhere, being held criminally liable for a mistake. Airline pilots do have to make split second decisions every now and then, but I have never heard of one being held criminally liable either.

[Technosavant]

Airline pilots do have to make split second decisions every now and then, but I have never heard of one being held criminally liable either.

Well, they don't often survive their mistakes.

The issues we're talking about aren't split second decisions. Making sure the address is correct on the warrant or they're at the right house isn't a decision made in the heat of the moment. If everything IS correct it's another matter, and more dealing with "Is this really the best use of the tactics involved?" and again, not so much a heat of the moment type decision... that goes to the folks back in the HQ.

[Conn. Trooper]

Oh, I agree, there is no excuse for making that type of mistake. We have to physically describe the place we are going to search, example: 111 Dump Street is a multi-level brown wooden structure with a mailbox displaying "111" and
"111" displayed on the front door.

I am talking about the decisions that are made when you don't have the time to sit down and get everything right.

[Technosavant]

I am talking about the decisions that are made when you don't have the time to sit down and get everything right.

Yeah, and I think those are probably not really the ones involved with worries regarding tactical teams making a no-knock dynamic raid on the home of a completely innocent person.

I can certainly understand the police thinking "He's pointing a gun at us... FIRE!" It's standard self defense. But if it gets to that point in the home of a completely innocent person, I'd consider the trigger-puller to not be at near as much fault as the folks who issued a search warrant, decided on this kind of raid, and set up shop outside the home (I'm assuming the folks in the door aren't the ones making these calls). If it happened to me, I'd be sitting in heaven without any mean words for the officer who punched my ticket, but I'd have a bone to pick with the person who pointed him through my front door.

What concerns me is that focusing on the homeowner's ability to defend himself may be missing the point; the focus should probably be placed more on ensuring raids of this level of danger are used only very rarely and in the most extreme cases, and when they are performed, everything is quadruple checked at every stage because of the stakes involved.

[shortwave]

If it happened to me, I'd be sitting in heaven without any mean words for the officer who punched my ticket, but I'd have a bone to pick with the person who pointed him through my front door.

^^^+1^^^

LE departments are set up differently. That being said, there is always a CO in charge of the breaching unit that reviews the warrant. The rest of the team are just obeying orders. They don't review the physical warrant. In some cases, there's no one on the actual breaching team that has done any prior investigative work at the suspected house. These breaching team memebers have never seen the house before. Prior investigation is done by a different LE department....



IMO, this just isn't a good practice. The night of the raid, there should always be a person present from the investigative team that's actually been to the suspect house accompanying the breaching team to insure that the targeted house is the intended house.
It doesn't always happen that way though.....

....sooo, you can't sue or hold the team member liable.

[zxcvbob]

If more of the risk was somehow shifted from no-knock victim to the police serving the faulty warrant, they might actually double-check the address.

[Spats McGee]

I see two basic problems here:

1) As regards split-second decisions: In the case of a no-knock raid, there are two groups that have to make split-second decisions: (a) the police; and (b) the occupants of the residence. If a bunch of darkly-clad men burst through my front door at 3 a.m., my first thought is probably not going to be, "Oh, that must be the police." This worries me. Being prepared for a home invasion by 1-3 hoodie-clad thugs is not the same as being prepared for a raid by 8-10 well-trained, body-armor-clad SWAT officers armed with ARs and flash-bangs. Further, if I raise a gun to defend my home, there's little chance that I'll survive the ensuing firefight. If it's thugs, and I guess wrong, I and my family could die. If it's the police, and I guess wrong, I and my family could die.4

2) Unlike engineers, pilots and doctors, who also make some split-decision, life-and-death decisions, the police are protected by qualified immunity. This is a well-established doctrine under federal civil rights law, and it's very effective. I've been using this doctrine for the better part of the last decade to defend officers. If, as in the last example, I do raise my gun to shoot the police, and they kill me, a court is likely to rule that they are immune from suit. There are a couple of different legal routes to qualified immunity. In very broad strokes, one of them is "if the officer's did not violate any bright-line constitutional or statutory rights of the plaintiff," and the other is "if the officers acted reasonably." (This is assuming that they acted under color of law, mind you.) I, on the other hand, enjoy no such immunity. If officers bust into my house and I do shoot and kill one (and assuming that I survive), I can be sued for wrongful death. Even if I acted reasonably, I will likely have to go to trial to defend myself. Compare this to officers, who will win on summary judgment, if they can prevail on qualified immunity.

[orangello]

...the police are protected by qualified immunity. This is a well-established doctrine under federal civil rights law, and it's very effective. I've been using this doctrine for the better part of the last decade to defend officers. If, as in the last example, I do raise my gun to shoot the police, and they kill me, a court is likely to rule that they are immune from suit. There are a couple of different legal routes to qualified immunity. In very broad strokes, one of them is "if the officer's did not violate any bright-line constitutional or statutory rights of the plaintiff," and the other is "if the officers acted reasonably." (This is assuming that they acted under color of law, mind you.) I, on the other hand, enjoy no such immunity. If officers bust into my house and I do shoot and kill one (and assuming that I survive), I can be sued for wrongful death. Even if I acted reasonably, I will likely have to go to trial to defend myself. Compare this to officers, who will win on summary judgment, if they can prevail on qualified immunity.

This level of court/legal protection doesn't seem to match up very well with "no knock" entries and other similar tactics, at least not in my civilian mind. That level of protection should be reserved for more "normal" interactions between LEO's and private citizens, such as a traffic stop. In a situation in which an entry team using quasi-military tactics to "breach" a dwelling with the intent to sieze illegal items or capture wanted persons (not a "hostage rescue" situation), SOMEBODY on the law enforcement side should have some legal liability for negligence and mistakes that could be lethal to completely uninvolved occupants of the dwelling. In my opinion.

[aarondhgraham]

I read about the passage of these types of laws,,,
Some 2nd Amendment oriented and some not.

I then read about people moving from the state that passed the law,,,
In fact I'm one who moved from California in the 90's because of bad gun laws.

What I wonder is this,,,
Has anyone ever read about the passage of a restrictive firearm law,,,
And then said: "I agree with that philosophy of government, I'm moving to that state."

Just a random thought.

Aarond

[Spats McGee]

Originally Posted by orangello

This level of court/legal protection doesn't seem to match up very well with "no knock" entries and other similar tactics, at least not in my civilian mind. That level of protection should be reserved for more "normal" interactions between LEO's and private citizens, such as a traffic stop. In a situation in which an entry team using quasi-military tactics to "breach" a dwelling with the intent to sieze illegal items or capture wanted persons (not a "hostage rescue" situation), SOMEBODY on the law enforcement side should have some legal liability for negligence and mistakes that could be lethal to completely uninvolved occupants of the dwelling. In my opinion.

Just to play devil's advocate for a moment, . . . . From the LEO's perspective, it is during the no-knock or other "high speed, low drag" scenarios that a LEO has even more need of qualified immunity. In the overwhelming majority of law enforcement contacts, there are few, if any, split second decisions that have to be made. Unfortunately, the LEO on the scene never knows if this particular encounter will be the one to require such a decision. OTOH, in the no-knock scenario, an officer may be called upon to decide right now whether to pull the trigger. If every officer knew that a small error in execution could result in his or her homelessness, we'd have no officers to execute any of the high-risk raids.

Just to outline the contours of QI a little more closely, there are a couple of concepts that I should lay out:

1. QI is an individual defense. That is, it protects the officer and his or her personal assets. It is not available to a city or other employing agency, though that agency may have other immunity defenses.
2. QI only protects the individual officer from actions sounding in negligence. It does not protect from actions which lie in the intentional torts (assault, battery, etc.) It "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335 (1986).

To be fair, though, most of the comments in this thread center around the actions of the folks responsible for putting the warrant together, not the SWAT officers executing the no-knock. That process is not a split-second operation.

[btmj]

As was mentioned earlier, we are not talking about split second decissions. We are talking about defective / negligent planning, or negligent strategy.

If I am an engineer designing an natural gas well, and I accidently specify the wrong kind of concrete, or the wrong size bolts, my company can be sued... but if my mistake results in a violation of the clean water act, the clean air act, or the endangered species act, I can go to jail.

If I can be held to that kind of responsibility, why can't the Police be held to the same kind of responsibility? If the wrong house is breached, someone in the Police leadership screwed up. If someone dies as a result, I don't think that it is too far of a stretch to say the the negligence rises to the level of criminal negligence.

[zxcvbob]

If I can be held to that kind of responsibility, why can't the Police be held to the same kind of responsibility? If the wrong house is breached, someone in the Police leadership screwed up. If someone dies as a result, I don't think that it is too far of a stretch to say the the negligence rises to the level of criminal negligence.

It's good to be the king. (And it sucks to be you)

That really is it -- the police, courts, and legislatures are on the same team and they exempt themselves from any liability.

[BlueTrain]

When in the last 40 years did the police get to be the bad guys? Is everyone here an ex-hippie?