Ind. S.C. "No right to resist illegal cop entry"; Ind. legislature strikes back

Started by jimmy olsen, May 14, 2011, 12:34:59 AM

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jimmy olsen

May 14, 2011, 12:34:59 AM Last Edit: April 13, 2012, 07:36:19 AM by jimmy olsen
 :hmm:
http://www.nwitimes.com/news/local/govt-and-politics/article_ec169697-a19e-525f-a532-81b3df229697.html
Quote

Court: No right to resist illegal cop entry into home


By Dan Carden [email protected],
Posted: Friday, May 13, 2011 3:56 pm
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.
It is far better for the truth to tear my flesh to pieces, then for my soul to wander through darkness in eternal damnation.

Jet: So what kind of woman is she? What's Julia like?
Faye: Ordinary. The kind of beautiful, dangerous ordinary that you just can't leave alone.
Jet: I see.
Faye: Like an angel from the underworld. Or a devil from Paradise.
--------------------------------------------
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The Brain

#2
May 14, 2011, 03:28:26 AM
Good. I think that the government should be free to do whatever the hell it likes to people and anyone who resists should be sent to Machiavellian gaol.
Women want me. Men want to be with me.

Neil

#3
May 14, 2011, 07:13:50 AM
That makes sense to me.  Why up the ante for injuries when defence against the agents of the state is impossible.  If the search is illegal, then it'll get thrown out at trial anyways.
I do not hate you, nor do I love you, but you are made out of atoms which I can use for something else.

grumbler

#4
May 14, 2011, 08:10:59 AM
I can easily see the police abusing this ruling in order to harass and intimidate, but agree with the court that the remedy for police mistakes and misconduct is not violence.  I wonder how effective the threat of lawsuits will be in deterring police misconduct or negligence, though.  It seems to me likely that, in many cases, the police desiring to abuse this ruling will simply believe that they can lie their way out of the consequences.  OTOH, I am not sure that any given police have a great deal of incentive to abuse this ruling.
The future is all around us, waiting, in moments of transition, to be born in moments of revelation. No one knows the shape of that future or where it will take us. We know only that it is always born in pain.   -G'Kar

Bayraktar!

Martinus

#5
May 14, 2011, 08:32:21 AM
I agree with grumbler. I don't think the threat of violent response was a deterrent for cops not to perform unlawful searches - that's something they have to live with in a practical sense but unlikely it matters to them if they are being shot at lawfully or not.

This has to go hand in hand however with civil damages being available for victims of a wrongful search.

Razgovory

#6
May 14, 2011, 08:48:59 AM
Quote from: Martinus on May 14, 2011, 08:32:21 AM
I agree with grumbler.

The Kiss of Death.
I've given it serious thought. I must scorn the ways of my family, and seek a Japanese woman to yield me my progeny. He shall live in the lands of the east, and be well tutored in his sacred trust to weave the best traditions of Japan and the Sacred South together, until such time as he (or, indeed his house, which will periodically require infusion of both Southern and Japanese bloodlines of note) can deliver to the South it's independence, either in this world or in space.  -Lettow April of 2011

Raz is right. -MadImmortalMan March of 2017

Barrister

#7
May 14, 2011, 08:53:31 AM
Good.

We had a terrible case in Canada that went the other way.  POlice were executing a search warrant in Montreal.  The accused claimed he did not hear them yell "police!" and shot one of the officers, killing him.  He was acquitted at trial.
Posts here are my own private opinions.  I do not speak for my employer.

Grey Fox

#8
May 14, 2011, 09:31:28 AM
Quote from: Barrister on May 14, 2011, 08:53:31 AM
Good.

We had a terrible case in Canada that went the other way.  POlice were executing a search warrant in Montreal.  The accused claimed he did not hear them yell "police!" and shot one of the officers, killing him.  He was acquitted at trial.

It was also a poorly executed operation by police officer from a different city. The police fucked it up from the start. They paid for it dearly.
Colonel Caliga is Awesome.

Neil

#9
May 14, 2011, 10:35:25 AM
Quote from: Grey Fox on May 14, 2011, 09:31:28 AM
It was also a poorly executed operation by police officer from a different city. The police fucked it up from the start. They paid for it dearly.
Meh.  Punks like you will always blame the police no matter what happens.
I do not hate you, nor do I love you, but you are made out of atoms which I can use for something else.

jimmy olsen

#10
May 14, 2011, 11:02:14 AM
Quote from: Barrister on May 14, 2011, 08:53:31 AM
Good.

We had a terrible case in Canada that went the other way.  POlice were executing a search warrant in Montreal.  The accused claimed he did not hear them yell "police!" and shot one of the officers, killing him.  He was acquitted at trial.
Plain clothes? I don't know anything about this particular case, but that's plausible.
It is far better for the truth to tear my flesh to pieces, then for my soul to wander through darkness in eternal damnation.

Jet: So what kind of woman is she? What's Julia like?
Faye: Ordinary. The kind of beautiful, dangerous ordinary that you just can't leave alone.
Jet: I see.
Faye: Like an angel from the underworld. Or a devil from Paradise.
--------------------------------------------
1 Karma Chameleon point

Admiral Yi

#11
May 14, 2011, 11:15:39 AM
Quote from: jimmy olsen on May 14, 2011, 11:02:14 AM
Plain clothes? I don't know anything about this particular case, but that's plausible.

Civilian clothing muffles the voice? :hmm:

Barrister

#12
May 14, 2011, 11:49:01 AM
Quote from: jimmy olsen on May 14, 2011, 11:02:14 AM
Quote from: Barrister on May 14, 2011, 08:53:31 AM
Good.

We had a terrible case in Canada that went the other way.  POlice were executing a search warrant in Montreal.  The accused claimed he did not hear them yell "police!" and shot one of the officers, killing him.  He was acquitted at trial.
Plain clothes? I don't know anything about this particular case, but that's plausible.

I don't believe so.
Posts here are my own private opinions.  I do not speak for my employer.

DGuller

#13
May 14, 2011, 01:24:42 PM
Quote from: Admiral Yi on May 14, 2011, 11:15:39 AM
Quote from: jimmy olsen on May 14, 2011, 11:02:14 AM
Plain clothes? I don't know anything about this particular case, but that's plausible.

Civilian clothing muffles the voice? :hmm:
If they broke into the property forcefully, and were plain-clothed, it's plausible that they could be fired on by mistake.

dps

#14
May 14, 2011, 03:23:13 PM
While this ruling may be fine under Indiana law, I don't see how it could pass muster in a federal court--it seems at odds with the constittuional protection against unreasonable searches.  OTOH, given the facts of the case as presented in the article, it would seem that the police may have had probable cause to enter, in which case it wasn't unlawful entry anyhow.
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