no right to resist unlawful police entry into their homes

[Al Norris]

I think we need to all be on the same page as to what Common Law actually is. While you can find many different definitions and explanations, one of the best is this one:

Common law is the system of deciding cases that originated in England and which was latter adopted in the U.S.. Common law is based on precedent (legal principles developed in earlier case law) instead of statutory laws. It is the traditional law of an area or region created by judges when deciding individual disputes or cases. Common law changes over time.

The U.S. is a common law country. In all states except Louisiana, which is based on Napoleonic code, the common law of England was adopted as the general law of the state, or varied by statute. Today almost all common law has been enacted into statutes with modern variations by all the states. Broad areas of the law, such as property, contracts and torts are traditionally part of the common law. Because these areas of the law are mostly within the jurisdiction of the states, state courts are the main source of common law. The area of federal common law is primarily limited to federal issues that have not been addressed by a statute.

There is one other Item I would point out, as it is relevant to this discussion. The fourth amendment says:

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.

I've highlighted a different section than the area that Aguila Blanca highlighted. We all seem to forget that such searches and seizures must be unreasonable in their nature.

This is where Common Law comes into play. Over the years the Courts, both State and Federal, have opined on what is reasonable, not actually what is unreasonable. For good or bad, this is what case law has determined.

In the instant case, the officers were answering a domestic disturbance call. At the time the husband sent(?) his wife inside, the police had authority to determine if the wife was really OK. This is called an exigent circumstance and Courts all over have ruled the police need no warrant to enter the premises in these situations. This is an act of Common Law, if it is not already statutorily defined.

The Indiana Supreme Court, in this case, did not rule in any sort of narrow manner, that one would expect. Instead, with a broad brush, they painted out the protections of incorporated 4th Amendment jurisprudence (I haven't looked to see if the Indiana Constitution has a 4A analog).

Reasonableness and warrants no longer matter when the State of Indiana seeks to enter your home. This is entirely an action of Common Law and is at extreme odds with federal statutory construction, supremacy and federal common law itself.

What this Court has said is no different than telling a woman in the process of being raped, to simply lay there and enjoy it. Any recourse comes later. But only if we find that the perpetrator actually raped you. Then and only then can you go to court to seek recompense.

[Webleymkv]

Quote:
Originally Posted by Webleymkv
I don't know about you, but it takes more to convince me that someone is who they say they are than just yelling "POLICE". Is the person pounding on your door wearing a police uniform? Is there a squad car parked out front? Does this person (remember we're talking about and individual and not a SWAT team) have papers with him to serve? An even partially developed sense of observation will allow you to see the above mentioned things and will go a long way towards determining if the person pounding on your door is who they say they are. I don't know about you, but I never open my door to someone without looking to see who they are first.

What you seem to be overlooking is that police have persuaded the courts to issue "no knock" warrants, that give them authorization to conduct dynamic entries (i.e. smashing down the door) with no notice. They have also persuaded the courts to adopt a time delay of as little as 30 seconds as being a reasonable time to wait after knocking, before they bust in the door. I am a heavy sleeper and I sleep on the second floor. I'm also a senior citizen. I can't get out of bed and to the front door in 30 seconds even after I wake up and realize that there's someone knocking.

I am familiar with "no knock" warrants, but I'm pretty sure that they're not typically served by a lone officer. The days of Dirty Harry kicking in doors with no backup besides Smith and Wesson are gone, if they ever really existed to begin with. Heck, in my area it's getting rare for a cop to even make a traffic stop without calling for some sort of backup.

Also, as I understand it, a no knock warrant is issued for a high-risk suspect that is likely to flee or pose an unneccessarily high safety risk if he has time to react. Because of this, I'm betting that there will most likely be a SWAT team, or at least a large number of officers as backup before doors get kicked in. Now, fake uniforms and badges are one thing but I rather doubt that there are very many street gangs sporting Level III body armor, MP5's, and armored vans. Like I said before, I don't think the common thug can pull off a convincing imitation of a SWAT team.

As to your link, that's the same one I found when I Googled it and there are just a few issues here. First, we only really get one side of the story in detail from the girlfriend. The city has only released a very brief description of the officer's account and it's simply too early to make any judgements based on the limited info we have. Secondly, even if we assume that the girlfriend's account of the incident is 100% accurate, the legal right to resist doesn't really make a whole lot of difference here. Regardless of his rights, the guy still got shot and may very well die, no court ruling will change that. According to the officer's account, the man was shot because he resisted by pointing his gun at the cop, so whether the guy had the legal right to resist or not, it still got him shot. Also, if the cop truly did go wacko and shoot this guy for no good reason, the guy would most likely have a pretty strong case for shooting back based on the fact, if the witness accounts are accurate, that he had no reason to believe that the guy assaulting him was in fact a police officer. Finally, even in an extreme case such as this the victim or his family still has legal recourse against both the officer and department if the incident went down as they say it did.

[Webleymkv]

The Indiana Supreme Court, in this case, did not rule in any sort of narrow manner, that one would expect. Instead, with a broad brush, they painted out the protections of incorporated 4th Amendment jurisprudence (I haven't looked to see if the Indiana Constitution has a 4A analog).

Reasonableness and warrants no longer matter when the State of Indiana seeks to enter your home. This is entirely an action of Common Law and is at extreme odds with federal statutory construction, supremacy and federal common law itself.

What this Court has said is no different than telling a woman in the process of being raped, to simply lay there and enjoy it. Any recourse comes later. But only if we find that the perpetrator actually raped you. Then and only then can you go to court to seek recompense.

Sorry Al, but that's a logical leap that's just a bit too far for me to make. Resisting police entry into your home under questionable circumstances and defending yourself against death or grave bodily injury are quite different and I'm pretty confident that a jury or the Indiana Supreme Court could distinguish between them.

Also, I see nothing in this decision that changes the legality of unreasonable entry into my home. If the cops search my house without a warrant or probable cause, then any evidence obtained therin is still inadmissable and cannot be used against me. If I'm arrested without a warrant or probable cause, I can still sue for false arrest.

The issue is, honestly, a double edged sword. If the court had struck down the convictions, then it could conceivably be argued that I have the legal right to refuse to pull my car over when signalled if I don't believe I've comitted a traffic violation. I agree that the decision was too broad and I think that the best course of action would have been to uphold the convictions on the grounds that entry, in this particular circumstance, was not illegal because the criteria for "exigent circumstances" had been met. While I agree that the court went too far on this one, it would have been just as bad had they not gone far enough.

[Al Norris]

And if you tell the officer that, No, he can't come in without a warrant/probable cause, he can now arrest you, on the spot, for resisting/impeding.

You may get the search thrown out, but you will not get the resisting/impeding arrest dropped. Because the Indiana Supreme Court just made any such action, criminal.

And yes, I can quote the exact words of this opinion that specify this:

We hold that there is no right to reasonably resist unlawful entry by police officers.

No right to reasonably resist... Such as saying, "No."

As for the rape analogy, after reading the decision, it was my wife that suggested the analogy. I agreed with her. It is not as far-fetched as you would make it. [shrug] So we disagree.

Time will tell if this decision is allowed to stand.

[Webleymkv]

And if you tell the officer that, No, he can't come in without a warrant/probable cause, he can now arrest you, on the spot, for resisting/impeding.

You may get the search thrown out, but you will not get the resisting/impeding arrest dropped. Because the Indiana Supreme Court just made any such action, criminal.

Indiana laws is specific enough that simply denying permission to enter does not constitute resisting:

IC 35-44-3-3 Version a
Resisting law enforcement; mandatory sentence
Note: This version of section amended by P.L.100-2010, SEC.6. See also following version of this section amended by P.L.102-2010, SEC.2.
Sec. 3. (a) A person who knowingly or intentionally:
(1) forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of the officer's duties;
(2) forcibly resists, obstructs, or interferes with the authorized service or execution of a civil or criminal process or order of a court; or
(3) flees from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer's siren or emergency lights, identified himself or herself and ordered the person to stop;
commits resisting law enforcement, a Class A misdemeanor

http://www.in.gov/legislative/ic/cod.../ar44/ch3.html

Notice that 1 and 2 specifically include the words "forcibly". Simply telling and officer "No, you may not enter my home without a warrant" does not meet the definition of resisting law enforcement under Indiana law.

[KyJim]

Sure they did. Remember that 4th Amendment?

The Indiana court did not throw out the 4th Amendment. In fact, the issue is the remedy when police violate the 4th Amendment and enter a home unlawfully. Can you shoot them down like dogs or do you take it to a court?

In fact, violation of the 4th Amendment in and of itself carries no penalty. Suppression of evidence seized in violation of the 4th Amendment was a fairly recent development in the law. Civil liability for violation of civil rights is a creation of federal statute. So is potential criminal liability.

[bigbaby]

This ruling should suprise no one! Soon we will be required to house soldiers in our homes too; soldiers who serve the government not the people. IMO if the police are not elected sherrifs or working for an elected sherrif, then they are simply another government intrusion. It is not the fault of the police, but it is the fault of their bosses, the politicians; NOT THE PEOPLE.

[Famas]

Any possibility of the US Supreme Court taking up this issue?

[Dr. Strangelove]

"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."

What I see wrong with this is:

Modern police/govt agencies are the ones unnecessarily amping up the violence levels. Every govt agency with arrest powers now suddenly wants mp5's, black suited ninjas and assault helicopters, and the "Patriot Act" (or, "Let's turn America into NAZI Germany Act" has poured billions of federal dollars into turning every podunk police force into heavily armed FBI raid team wannabees. These guys sit around playing with their new toys, a situation that could have been handled differently comes up, and suddenly it looks like they're filming an episode of "The A-Team" in your neighborhood. Remember, everything looks like a nail if you have a shiny new hammer you wanna try out...

These raids themselves are unnecessarily dangerous for all involved. Surround the house, call for the suspect to give up. If things escalate, then breach the door.

The current culture of law enforcement worship has me worried. I respect the job the men and women of law enforcement do, but they are simply doing a job like anyone else. We as a people need to stop, take a long look around, and demand our rights back...

[secret_agent_man]

telling a woman in the process of being raped, to simply lay there and enjoy it

Said by Lone Star oil and gas tycoon Clayton Williams while campaigning for Governor of Texas in the early 80's. LOL, she's got recourse in the courts, but it's intercourse right now. Anne Richards tromped his donkey in that election.

This ruling is whack. Far as I know, the John Bad Elk case is still good law.

[armoredman]

but I rather doubt that there are very many street gangs sporting Level III body armor, MP5's,

Hmm, seem to remember more than one instance in Phoenix by itself, exactly that, usually these Zeta thugs doing their own versions of drug raids.

[Al Norris]

Sec. 3. (a) A person who knowingly or intentionally:
(1) forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of the officer's duties;
(2) forcibly resists, obstructs, or interferes with the authorized service or execution of a civil or criminal process or order of a court; or

"Interferes," is defined by the Courts. Not by you or me.

So what do the Courts in Indiana say is interference?

1) Putting an arm across the doorway?
2) Standing in the doorway so as to block or partially block entrance?
3) Forcefully telling the LEO that they may not enter?
4) Standing aside and simply saying, "I do not consent,"

As of now, in Indiana, all but option 4, are interference. Maybe. Since this is new law, the jury hasn't returned to opine on option 4.

[bigbaby]

Can you imagine a small County Sherrif, entering a house without good cause? Now, can you imagine a big County police force entering a house without good cause? The Sherrif probably knows, your friends, your family. He wants to avoid arrest when ever possible. He wants to be reelected, he wants to live in the community, ect. The big County Police generally have arrest quotas(that is the urban legend, if it is wrong please let us know LEO) even if it is not correct that the big County police have arrest quotas; they certainly are not beholden to the community the way an elected Sherrif's department is. If we had more of these and less big Police departments there would be less concern about such rulings. I guess in such a big Country, it is just not realistic, but we can dream LOL

[Musketeer]

I agree that the decision was too broad and I think that the best course of action would have been to uphold the convictions on the grounds that entry, in this particular circumstance, was not illegal because the criteria for "exigent circumstances" had been met.

I am a little late to the party but the above seems to be what would have been best. The ruling made is so broad that it is very likely to be overturned in my opinion.

[Conn. Trooper]

The only time I have witnessed a "no knock" warrant is when imminent destruction of evidence, or a valid threat to LE is known. They don't happen every day, and they very rarely go bad, despite the opinions to the contrary.

I can see the part of the argument that you fight it in court. Not on the street, and not with force. If you shot a cop by mistake, or got yourself or a family member shot by mistake, is it worth it? Not to me.

[bigbaby]

The Trooper does make a good point. I would want to resist, but I wouldn't, you can't win. There is no good answer; but even in big Counties if Police Chiefs were elected, rather then appointed, it could only be a good thing.

[Eghad]

The Justices on that case in Indiana just redefined Indiana law with that ruling which sets a new precedent and standard for the police. So any law that was the law in Indiana will be redefined with that standard when you try to take the police to court in Indiana for an unreasonable search. You can bet your bottom dollar the DA in any case involving unreasonable searches in Indiana is going to whip that case out as precedent.

[Erik]

"What this decision states is, basically, that an individual cannot use the belief of an illegal entry as a defense for assaulting an LEO."

Agreed. It is the home version of the logic often applied to roadside interactions.

[Spats McGee]

Originally Posted by Musketeer

I am a little late to the party but the above seems to be what would have been best. The ruling made is so broad that it is very likely to be overturned in my opinion.

I agree with Musketeer on this. Based on what I read ((1) that there was a domestic disturbance going on; and (2) that the girlfriend/wife was telling the boyfriend/husband to let officers in), I could get behind a ruling that exigent circumstances existed for the entry. But when they threw A4 out there, calling the old doctrine "incompatible with modern Fourth Amendment jurisprudence," the Indiana Supreme Court painted with an awfully broad brush.

[zukiphile]

Originally Posted by Webleymkv

What this decision states is, basically, that an individual cannot use the belief of an illegal entry as a defense for assaulting an LEO.

That's the core problem with this doctrine for me.

The practical application is that a prosecutor can use the potential conviction for resisting the unlawful entry as leverage for the defendant to drop the matter of the unlawful entry. Is it a stretch to imagine that a PO would reasonably use knowledge of this leverage when considering whether to obtain a warrant?

The suggestion (in the doctine, but not the facts of this case) that you have one set of rights if your assailant is in street clothes and another set if he is dressed in a uniform and badge seems problemmatic.

Public safety is not a cogent rationale for this doctrine. If it were, we would also prohibit resistance to violent crime on the basis that it endangers public safety.

[BlueTrain]

One problem here is the assumption that all parties involved in a situation have perfect knowledge of both the law and of everything that is happening at the moment. The rub comes in when the parties themselves make the assumption about what they think they know.

Me, I don't know nothing; I didn't see nothing; I wasn't even there.

[Rifleman1776]

I asked the main question of our local Sheriff's department Captain. His long response was, essentially, we must let them in and not resist at all. The question of lawful/unlawful entry would eventually be settled in court.
That is what he said. Of course, I don't agree. But who am I?

[Al Norris]

Well, it appears things are simmering in Indiana.

There have been numerous threats against a certain Indiana Supreme Court Justice, for his ruling.

Then an Indiana Sheriff states that he can conduct random House to House searches, if he decides it's prudent in order to capture a criminal.

Then there is a Facebook page calling for the removal of this Sheriff and the Justice.

Is it just this one decision that has gotten so many people in an uproar? No. This is only the icing on the cake, it seems.

Two days before this decision, another decision was rendered in an unrelated case:

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 above from http://www.examiner.com/libertarian-...#ixzz1MpRkesWA. This was a opinion filed on May 10, 2011: Damion J. Wilkins v. State of Indiana

This was actually a case about suppressing evidence. Nothing new on the federal level. Here the ISC shifts the focus to the State level. it simply regurgitates what Scalia said in Hudson v. Michigan:

In sum, the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial . . . . Resort to the massive remedy of suppressing evidence of guilt is unjustified.

The ISC however went a step further in that they said the police can decide on the spur of the moment to "upgrade" the warrant to no-knock status.

The two cases combined may be a perfect firestorm in Indiana.

[Aguila Blanca]

And for many years I thought Indiana was one of the fifty United States of America.

[csmsss]

Amazing. Just amazing. Can't wait for this to hit the federal courts.