No right to resist entry by LEOs

[The Bubba Effect]

Can/Should you physically resist the unlawful actions of police in all instances?

Can we refine the question to, "can/should you physically resist the unlawful forced entry of police into your dwelling?"

A man's house being his castle and his car on a public road being a car on a public road.

 

[88GT]

I'm detecting the inability to answer the question... and though the filler looks nice, that still does not change that you guys are very untactfuly avoiding the question.

So I'll give you the bare bones of the argument again. Can/Should you physically resist the unlawful actions of police in all instances?

Can you? No, clearly. Just ask Jose Guerena and the wood carver.

Should you? See above.

Should you be able to without any consequences? Yes.

 

[Kutnupe14]

Can you? No, clearly. Just ask Jose Guerena and the wood carver.

Should you? See above.

Should you be able to without any consequences? Yes.

And, in that, I agree with you 100% The problem is, the average citizen that resists unlawful entry will reap those consequences immediately.

 

[WWIIIDefender]

Wednesday I had the right to protect myself inside my house from illegal police entry. Today I don't how are we not loosing our rights here.

So now the only way to change this is to become a victum first and then spend probably all your lifesavings and pray.

 

[Rookie]

After reading the case, I have a few comments about the situation.
First, I'm going to play armchair quarterback and say the officers could have handled it differently. It would have been better to not allow the husband to enter the residence. Since it didn't happen that way, it really doesn't matter, it was just something that popped into my mind while I was reading. I honestly believe the results would have been the same, ding bat goes to jail. Being that we're stuck with the facts, instead of how I think it should have been handled, I feel the officers were right to enter the residence. They come to the scene to find an agitated, combative (although only verbally at this point) person. The person tries to enter the residence with his wife, and tries to deny the police entry. How many of you would tell your two arguing children, "go in the other room, I'll be right outside if you need me"? Any time anyone is dealing with two or more arguing parties, common sense dictates that you keep them separate.

The problem I have with this case, as others do, is the BROAD ruling that was given. Consider my point of view, the last time I had a brush with the law was over 20 years ago (75 in a 45). If someone comes into my house unannounced, uniform or not, I'm going to assume that they mean to do me harm. I'm not talking about a situation like this case involved, any person with a shred of common sense would realize that the officers were called there and were acting within the law. My simple answer to this is, the officers wouldn't be at my house, and, IF they were, my door would at no time be open. I'm talking about someone who, for all intents and purpose, has no reason to be on my property, much less in my house. The court ruling essentially states to me that anyone in uniform, can come into your house, at any time. That's where I have the problem. Interestingly enough, judge Dickson has the same concerns, "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. And that their sole remedy is to seek refuge in the civil arena."

I sincerely hope this is overturned.

 

[Kutnupe14]

After reading the case, I have a few comments about the situation.
First, I'm going to play armchair quarterback and say the officers could have handled it differently. It would have been better to not allow the husband to enter the residence. Since it didn't happen that way, it really doesn't matter, it was just something that popped into my mind while I was reading. I honestly believe the results would have been the same, ding bat goes to jail. Being that we're stuck with the facts, instead of how I think it should have been handled, I feel the officers were right to enter the residence. They come to the scene to find an agitated, combative (although only verbally at this point) person. The person tries to enter the residence with his wife, and tries to deny the police entry. How many of you would tell your two arguing children, "go in the other room, I'll be right outside if you need me"? Any time anyone is dealing with two or more arguing parties, common sense dictates that you keep them separate.

The problem I have with this case, as others do, is the BROAD ruling that was given. Consider my point of view, the last time I had a brush with the law was over 20 years ago (75 in a 45). If someone comes into my house unannounced, uniform or not, I'm going to assume that they mean to do me harm. I'm not talking about a situation like this case involved, any person with a shred of common sense would realize that the officers were called there and were acting within the law. My simple answer to this is, the officers wouldn't be at my house, and, IF they were, my door would at no time be open. I'm talking about someone who, for all intents and purpose, has no reason to be on my property, much less in my house. The court ruling essentially states to me that anyone in uniform, can come into your house, at any time. That's where I have the problem. Interestingly enough, judge Dickson has the same concerns, "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. And that their sole remedy is to seek refuge in the civil arena."

I sincerely hope this is overturned.

I personally think the ruling was too broad as well. I don't think the court thought it through in terms of how this ruling would look to the public. This ruling should have been confined to domestics, and only domestics. If they were going to hand down this ruling, they should have attempted to limit the scope in which LE is able to act. The case makes note that the officer's entry had not been deemed unlawful (that's for another court to decide). That claim was made by the defense and the Court addressed it, incorrectly (given the broad scope).
The officer's IMO had every right to enter the home and that their conduct was perfectly legal. But again, that entry isn't specifically addressed, only that the defense claimed the entry was unlawful, and thus Barnes had the right to resist. The court disagreed with his right to resist, and created a chitstorm in the progress.
I think this case is backwards. Barnes should have sued the officers/PD on the grounds that his right were violated by their (according to him) "unlawful" entry. From there, if he won, he should have sought to have his convictions overturned. If he had lost, then this case would have never been filed.

It's a precedent. I would be very surprised if this is overturned sans a ruling about the legality of the officers entering the home. I would think that it will have to be challenged again, in a situation where officers clearly make an unlawful entry, and are met with resistance.

 

[Rookie]

Your last statement is the scary part...

 

[KG1]

I think that what goes to the heart of this matter is the broad brush that was used in this decision. I take it to mean that under no circumstance is it allowed to resist an unlawfull act of a law enforcement officer, which to me is flat out wrong. Case in point as an example, The recent case of two chicago cops giving a ride home to a young female and going up to her appartment, whether invited or not, and ended up haveing sex and then she claims that it was forced. Now under this ruling would she have been deemed justified to resist the two officers advances or would she just have to take it and seek justice after the fact? I guess my question is, at what point or how far of an "unlawfull" act by law enforcement should we as citizen's by required to take?

 

[Slapstick]

I see a US Supreme Court ruling in the future on this. If the ACLU & the ICLU don't jump on this I'd be very very surprised!

In the mean time I would suggest that since the Indiana Supreme Court stated that. "In sum, we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law", that we contact our State Reps and petition them to pass a law barring such things except under the most dire of exigent circumstances, ie. basically the way it was before the ruling.

If the Supreme's want to weaken a law on the books by their interpretation then our best recourse to pass a law that strengthens what we lost and that can not be open for interpretation.

 

[beararms1776]

Just because they're dressed like a cop doesn't mean they are one. Shady shady.

 

[finity]

Besides that, your vehicle and your home are 2 completely different things... you can't shoot someone who is stealing your vehicle unless they try to hit you with it or possess a firearm.

That's not entirely correct...

While you can't shoot someone for simply stealing your car, you CAN shoot someone for stealing your car WHILE YOU'RE IN IT.

IN law specifically allows deadly force to prevent an unlawful entry or attack on your OCCUPIED vehicle.

That is found in the same place as the other aspect of our "castle doctrine" is found (& yes, virgina, there is a "castle doctrine" in IN no matter what that other poster said. We also have a "stand your ground" law, as well). It doesn't say that the person has to have a weapon. It doesn't say that they have to be using the vehicle as a weapon. It simply says if they are attempting to unlawfully enter or attack your occupied veicle you can use reasonable deadly force to stop them...the same as an attack on, or illegal entry of, your house.

For what it's worth, some political and sociological info on the judges. Judges and their supporters will scream until they are red in the face that political and sociological factors never weigh on their minds when deciding cases but I think any reasonable person will agree that, as humans, 100% impartiality is impossible. All humans are flawed and their world views are shaped by both intellectual development AND experience.

I find it interesting that the dissenters where both born in Gary, one a white Republican that grew up in Hobart and the other, a black Democrat raised in Gary:


Affirm:

Steven David, Appointed by Republican (Daniels)
Supreme Court Welcomes Justice Steven David | Indiana Court Times
Born in Allen County, raised in Columbus

Randall Terry Shepard, Appointed by Republican (Orr)
Indiana Supreme Court Justice Biographies: Chief Justice Randall T. Shepard
Native of Lafayette

Frank Sullivan, Jr., Appointed by Democrat (Bayh)
Indiana Supreme Court Justice Biographies: Justice Frank Sullivan, Jr.
Native of South Bend


Dissent:

Robert D. Rucker, Appointed by Democrat (O'Bannon)
Indiana Supreme Court Justice Biographies: Justice Robert D. Rucker
Native of Gary

Brent E. Dickson, Appointed by Republican (Orr)
Indiana Supreme Court Justice Biographies: Justice Brent E. Dickson
Born in Gary, raised in Hobart

And since it was mentioned but was more than likely lost on many I will specifically point out that...

This BAD decision in this ruling was made by a MAJORITY of "conservative" (republican?) judges. The "liberals" (democrats?) at least split the decision 50/50.

So do we still think that ALL conservatives are good & ALL liberals are bad? Do we still think that it is ALWAYS ABSOLUTELY certain that a conservative government will protect our rights & rule IAW the Constitution & a liberal one would ALWAYS ABSOLUTELY violate it?

 

[tooleman]

Election time is coming up fast, let's bring this topic to light so all the voters know and let's take back what is left of our right to vote and too support those who have fought and died for this rights. This decision is totally out of line and should not have made it to the surpreme court of Indiana. This only the beginning, it will give police officers the right to search, confiscate and prosecute you for more laws that they can and will change. It is time to remind all public officials they work for the tax payers of Indiana and they can not just do what suits them. They still have laws just like the rest of us and need to be held accountable.

 

[INGunGuy]

That's not entirely correct...

While you can't shoot someone for simply stealing your car, you CAN shoot someone for stealing your car WHILE YOU'RE IN IT.

IN law specifically allows deadly force to prevent an unlawful entry or attack on your OCCUPIED vehicle.

That is found in the same place as the other aspect of our "castle doctrine" is found (& yes, virgina, there is a "castle doctrine" in IN no matter what that other poster said. We also have a "stand your ground" law, as well). It doesn't say that the person has to have a weapon. It doesn't say that they have to be using the vehicle as a weapon. It simply says if they are attempting to unlawfully enter or attack your occupied veicle you can use reasonable deadly force to stop them...the same as an attack on, or illegal entry of, your house.




And since it was mentioned but was more than likely lost on many I will specifically point out that...

This BAD decision in this ruling was made by a MAJORITY of "conservative" (republican?) judges. The "liberals" (democrats?) at least split the decision 50/50.

So do we still think that ALL conservatives are good & ALL liberals are bad? Do we still think that it is ALWAYS ABSOLUTELY certain that a conservative government will protect our rights & rule IAW the Constitution & a liberal one would ALWAYS ABSOLUTELY violate it?

If that car happens to be within your CURTILAGE then you are ok to shoot to kill even an unoccupied vehicle.

INGunGuy

 

[finity]

If that car happens to be within your CURTILAGE then you are ok to shoot to kill even an unoccupied vehicle.

INGunGuy

No, I don't think so.

If it is obvious that they are just stealing a vehicle then there is not an "attack" on your curtilage.

If someone came into my yard & tried to run away with my grill I don't have the justification to use deadly force to prevent my grill from being stolen even though he had to enter my "curtilage" to get it. An unoccupied vehicle is the same as a grill.

The "castle docrine" law was passed based on the concept that you are inherently in danger for an attack or unlawful entry in those places listed (home, curtilage, occupied vehicle). Of the three I think "curtilage" is the least well defined & could end up causing you the most legal trouble if you used deadly force without an overt threat from the BG.

It's pretty obvious that if a person is breaking into your home or carjacking you that you are in danger but trying to convince a jury that killing a guy was reasonable for him just trying to hot wire an empty car in your driveway with no other threat would be way harder.

You MIGHT get away with it but I don't think you should be telling anybody it's a sure thing that they will be OK legally.

 

[Rookie]

Dead cops who break into homes....

ZOMBIE ATTACK!

Other than that, your post was useless.

 

[88GT]

And, in that, I agree with you 100% The problem is, the average citizen that resists unlawful entry will reap those consequences immediately.

So the solution is to tell the populace it can't fight back? That's what this decision essentially said.

How about we put a check on LE instead of the people. Now there's an idea.

 

[MTC]

By his own words, he (writing for the majority) negates an essential part of the 4th Amendment as well as Article 1 section 11 of the Indiana Constitution.

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

We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence.

[key word emphasized]

"...public policy..."
"...modern ___ Amendment jurisprudence."

Very well. I hold that, as it presently stands, the Indiana Supreme Court as a group cannot be trusted to uphold and defend the constitutional rights of the people. Although it was said that to err is human, to forgive divine, I expect better from a Supreme Court Justice.

Agree mostly with Justice Dickson's dissent:

...the wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad.

and this part of Justice Rucker's:

...it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations.

All the more reason why, when we move over to issues such as the right to bear arms, it is preferable to seek redress for grievances through our elected representatives in the legislature. Considering how such a ruling affects 4th Amendment issues, it is not a stretch to infer the likelihood of outcome on cases affecting the 2nd Amendment and Article 1 section 32.

 

[SemperFiUSMC]

Justice David should have a retention election in 2012. We need to have a very long memory, very long grass roots, and restrict this guy to a 2 year appointment.

Justice Sullivan will be on a retention ballot in 2016. Longer memory, longer grass roots required.

Chief Justice Shepard will not be on the ballot for retention until 2018. Even longer memory, longer grass roots required.

 

[dross]

From my reading, the scary part of this is the change from the requirement to get a judge to approve a no-knock warrant to the officer(s) determining whether it should be no-knock.

 

[TriggerWork]

What is our recourse, public demand, State House/Senate, or only by an official lawsuit to challenge?