The decision is Barnes v. State, and the Indiana Supreme Court divided 3-2.
In this case, the officer had come to the home in response to a domestic violence call. He found the defendant, Barnes, outside. The officer and the defendant exchanged heated words, and the defendant started yelling at the officer. The officer threatened to arrest the defendant if he didn’t calm down, and the defendant threatened to have the officer arrested if he arrested him. At this point the defendant’s wife came outside, threw a duffel bag in the defendant’s direction, and told him to take the rest of his stuff. She then went back inside the home. The defendant then reentered the home following his wife, but once inside he blocked the officer (and another officer) from entering. The officers asked if they could enter the home, and the defendant’s wife pleaded with the defendant to let them enter. The defendant refused. The police then entered anyway, and the defendant “shoved [an officer] against the wall.” The officers then tazed the defendant and arrested him.
The defendant was charged with misdemeanor battery against a police officer, among other things. At trial, he wanted to argue to the jury that it was lawful to shove the officer because he had a citizen’s right to reasonably resist unlawful entry into his home. He sought the following jury instruction:
When an arrest is attempted by means of a forceful and unlawful entry into a citizen‘s home, such entry represents the use of excessive force, and the arrest cannot be considered peaceable. Therefore, a citizen has the right to reasonably resist the unlawful entry.
The trial judge refused to let the defendant make that argument to the jury. The jury convicted, and the defendant argued that it was legal error to deny him his defense. The Indiana Supreme Court ruled 3-2 that there is no such right to resist unlawful police entry into the home. From the opinion:
The English common-law right to resist unlawful police action existed for over three hundred years, and some scholars trace its origin to the Magna Carta in 1215. Craig Hemmens & Daniel Levin, “Not a Law at All”: A Call for the Return to the Common Law Right to Resist Unlawful Arrest, 29 Sw. U. L. Rev. 1, 9 (1999). The United States Supreme Court recognized this right in Bad Elk v. United States, 177 U.S. 529, 535 (1900): “If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest.” The Supreme Court has affirmed this right as recently as 1948. United States v. Di Re, 332 U.S. 581, 594 (1948) (“One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases.”).
In the 1920s, legal scholarship began criticizing the right as valuing individual liberty over physical security of the officers. Hemmens & Levin, supra, at 18. One scholar noted that the common-law right came from a time where “resistance to an arrest by a peace officer did not involve the serious dangers it does today.” Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942). The Model Penal Code eliminated the right on two grounds: “(1) the development of alternate remedies for an aggrieved arrestee, and (2) the use of force by the arrestee was likely to result in greater injury to the person without preventing the arrest.” Hemmens & Levin, supra, at 23. In response to this criticism, a majority of states have abolished the right via statutes in the 1940s and judicial opinions in the 1960s. Id. at 24–25. . .
We believe . . . that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. E.g., Warner, supra, at 330 (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist); State v. Hobson, 577 N.W.2d 825, 835–36 (Wis. 1998) (citing the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies). 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— as evident by the facts of this instant case. E.g., Hobson, 577 N.W.2d at 836 (“But in arrest situations that are often ripe for rapid escalation, one‘s ̳measured‘ response may fast become excessive.”).
Further, we note that a warrant is not necessary for every entry into a home. For example, officers may enter the home if they are in “hot pursuit” of the arrestee or if exigent circumstances justified the entry. E.g., United States v. Santana, 427 U.S. 38, 42–43 (1976) (holding that retreat into a defendant‘s house could not thwart an otherwise proper arrest made in the course of a ―hot pursuit‖); Holder v. State, 847 N.E.2d 930, 938 (Ind. 2006) (“Possible imminent destruction of evidence is one exigent circumstance that may justify a warrantless entry into a home if the fear on the part of the police that the evidence was immediately about to be destroyed is objectively reasonable.”). Even with a warrant, officers may have acted in good faith in entering a home, only to find later that their entry was in error. E.g., Arizona v. Evans, 514 U.S. 1, 11 (1994); United States v. Leon, 468 U.S. 897, 922–25 (1984). In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance.
From the dissent:
[T]he common law rule supporting a citizen‘s right to resist unlawful entry into her home rests on . . . the Fourth Amendment to the United States Constitution. Indeed, “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585 (1980). In my view 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. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.
In Miller v. United States, 357 U.S. 301, 313-14 (1958) the United States Supreme Court held that it was unlawful to arrest the defendant on criminal charges when a warrantless arrest was conducted by police officers breaking and entering the defendant‘s apartment without expressly announcing the purpose of their presence or demanding admission. In recounting the historical perspective for its holding the Court quoted eighteenth century remarks attributed to William Pitt, Earl of Chatham, on the occasion of a debate in Parliament:
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!
Id. at 307. The same is no less true today and applies equally to forces of the State.
At issue in this case is not whether [the defendant] had the right to resist unlawful police entry into his home – a proposition that the State does not even contest – but rather whether the entry was illegal in the first place, and if so, whether and to what extent Barnes could resist entry without committing a battery upon the officer. Federal Fourth Amendment jurisprudence is equal to the task of resolving these issues. 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 disagree and therefore respectfully dissent.
Thanks to reader Laura Victoria for the link.
Arthur Kirkland says:
Any odds on the likelihood that judges who (again) bless police officers’ improper conduct would consider, let alone arrange, an effective deterrent?
May 13, 2011, 12:51 pmArthur Kirkland says:
If this is new law, can the citizen argue that he reasonably relied on the state of the law when he acted?
May 13, 2011, 12:55 pmMark Jones says:
Arthur–no bet.
Based on the my reading of this post–and nothing else–it seemed to me that the cop was justified in entering the house. The defendant’s wife wanted him to enter. In which case, yeah, the defendant’s attempt to resist was unjustified.
That said, it’s absurd to say that a citizen doesn’t have the right to resist an unlawful entry with force. If this ruling stands, then not only can you now anticipate the possibility of an unannounced, 4 a.m. raid by armed, armored and masked JBTs if they get the address wrong, but assuming you survive the encounter, you can be arrested for unlawfully resisting.
As for the argument that prioritizing liberty over the safety of the police is wrong somehow–screw that. We’ve lost enough fourth amendment rights already.
May 13, 2011, 12:58 pmRandolph says:
Do they contemplate any limit at all to this, or is there truly no right to self defense against police aggression? Can you not fight back against a rapist because he’s holding a badge?
[edit] obviously I don’t think the court would actually do this, but I wish they discussed a limit.
May 13, 2011, 1:01 pmCrunchy Frog says:
Let me get this straight:
Domestic violence call
Wife pleading for police to be allowed entry
Belligerent husband
So why did the trial court not find that a) the wife’s consent was enough for the police to enter legally, or b) barring that, concern over the wife’s safety was sufficient exigent circumstances? Why did this even become an issue?
May 13, 2011, 1:01 pmBelial says:
Sorry, haven’t read the full opinion, but why wouldn’t the wife’s invitation to the police to enter render their entry lawful?
May 13, 2011, 1:02 pmLaura(southernxyl) says:
Mark Jones’s point was mine too.
If she wants them to come in, and is heard to say so, how can it be illegal entry? Does only the husband have the right to invite people into the house?
May 13, 2011, 1:03 pmPhatty says:
Randolph, if the police are involved, the citizens of Indiana are required to lie down and submit.
May 13, 2011, 1:03 pmHattio says:
For those who are asking why this is an issue, I’m guessing (without having read the opinion, I know, bad idea), that because he was asking for a jury instruction, the question was still up in the air, ie., IF they had found that the police had no justification to enter, could he have lawfully resisted.
May 13, 2011, 1:12 pmOrin Kerr says:
Crunchy Frog:
From a Fourth Amendment perspective, the issues are a little complicated. Recall Georgia v. Randolph, in which the Supreme Court held that the wife’s consent to search a home is invalid if the husband is present and refuses consent. Also, it’s not totally clear that there were exigent circumstances. But either way, it’s helpful to keep in mind that this is a battery case, not a Fourth Amendment case.
May 13, 2011, 1:16 pmFred says:
Well, in light of Orin K.’s previous comments defending the TSA in their patdown procedures, I’m kind of surprised at the angle he takes here. I mean, in both cases (TSA and the officers in this case) they were both following “procedures.”
Or is it that, in this case, Orin K. believes there is some ancient law that supposedly restricts what the officers can do? The logic that decided this case is the same as that which guides the TSA: safety for agents of the state comes first, privacy and dignity come second.
To sum it up, Orin K. seems pretty well hypocritical on moral grounds, and if he defends his hypocrisy on legal grounds, then I encourage everyone to ignore lawyers whose morality is determined by the boundaries of law and procedure.
May 13, 2011, 1:17 pmOrin Kerr says:
Yes, Hattio, I believe that’s right. The lawfulness of the entry wasn’t litigated because of the way the issue came up — as a tendered jury instruction.
May 13, 2011, 1:17 pmjd says:
does the wife have any ownership of the house?
was the wife pleading for the authorities to step in?
the cops did their job,sez I
May 13, 2011, 1:24 pmTJ says:
Indiana Supreme Court Upholds the “Rapist Doctrine”: Don’t Resist — You’ll Just Make It Worse
http://www.lewrockwell.com/blog/lewrw/archives/88027.html
http://www.utulsa.edu/law/classes/rice/USSCT_Cases/Bad_Elk_v_US_177_529.htm
http://supreme.justia.com/us/177/529/case.html
May 13, 2011, 1:24 pmTJ says:
Many judges HATE the holding in John Bad Elk v. United States.
I think some judges look for any excuse to destroy it, whenever the opportunity arises.
May 13, 2011, 1:29 pmJoe says:
This is really poor judicial reasoning. The Court basically said, look we know there is this right out there that was recognized by the English courts and then later by the US Supreme Court twice and as recently as 1948 but we don’t like it so …
May 13, 2011, 1:30 pmcboldt says:
– Do they contemplate any limit at all to this, or is there truly no right to self defense against police aggression? Can you not fight back against a rapist because he’s holding a badge? –
May 13, 2011, 1:33 pmThe words of the decision are pretty clear. There is no right to resist illegal police entry into the home. Any resistance to police entry to the home is illegal.
I think the dissent has the better argument, but they lost.
If I was a resident of Indiana, this case would not change my reaction to an illegal entry.
Giant Frog says:
It’s good to see that precedent can be ignored it’s convenient to do so.
In the 1920s, legal scholarship began criticizing the right as valuing individual liberty over physical security of the officers.
Who keeps hiring these legal scholarship dweebs?
May 13, 2011, 1:35 pmarbitrary aardvark says:
I would be interested to know if any of the tea party republicans in the Indiana legislature would support a bill to give a right to resist unlawful entry by police.
May 13, 2011, 1:37 pmciting the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist. In my personal experience, all of these factors are still realities in Indiana. And civil remedies are rarely effective. The local bar won’t take cases like this on contingency,and most victims of police abuse can’t afford a big retainer. The state court effectively gives absolute immunity to police, although it doesn’t call it that.
TJ says:
I think case highlights one of the many problems with the concept of binding precedent: it is only binding on those judges who view it as binding; any violations of precedent become new binding precedents for those judges who view precedent as binding.
So judges who believe in binding precedent are basically saying: let’s dogmatically follow the precedents set by those judges who do do not follow the binding precedent doctrine.
The doctrine of binding precedent fails to preserve the stability of the law because it is not self-enforcing and not self-correcting.
May 13, 2011, 1:45 pmSean M. says:
The commenters are citing the Supreme Court case as if it were a Constitutional holding. It’s not. This instead focuses on the substantive crime of battery and considers whether “self-defense against officers who have conducted an entry contrary to law” is a defense to it. States, of course, are free to define their criminal law as they wish.
Many states take the same position as Indiana now does. I don’t see anyone who has refuted the point of the majority, which is when the police make what later turns out to be an unlawful Fourth Amendment entry and the occupant resists, the end result is usually that the subject is subdued anyway and police officers get hurt. I mean, has any suspect successfully repelled the police invaders?
It’s common, I think, when people consider this issue to think of officers gone off the reservation and kick in the first door they see.
But if you adopt the principle that force is permitted to prevent all illegal entries, then very close Fourth Amendment calls (is it hot pursuit? Is it exigent circumstances? Was the probable cause to support the warrant sufficient?) turn into both close Fourth Amendment calls and physical confrontations between suspects and police where no one wins.
Consider a slightly different hypothetical. You’re driving and an officer behind you thinks he has reasonable suspicion that you’ve violated a traffic law. It turns out that under the applicable law he does not have any such reasonable suspicion. So, asserting your right to use force to resist the unlawful detention of your person, take off on a low-speed pursuit down the highway. If the officer spins out and strikes the guard-rail, are you liable? Under the theory espoused by the dissent, I guess not. But that seems an anomalous result.
In the olden days, illegal entry was pretty clear-cut, because we didn’t have then the Constitutional protections we have today in the Fourth Amendment. But today, to embrace the dissent’s view is to authorize our Constitutional jurisprudential disputes to be settled by fists, not in the courts.
May 13, 2011, 1:53 pmOrin Kerr says:
TJ,
The Indiana Supreme Court interpreting Indiana law does not purport to be “bound” by English precedents and the like.
May 13, 2011, 1:54 pmJordan Stover says:
The Indiana Supreme Court decided that the common law right was no longer needed and was therefore abrogated. Interestingly, though, they didn’t address the statutory right to resist an unlawful entry codified at 35-41-3-2:
—
(b) A person:
(1) is justified in using reasonable force, including deadly force, against another person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle.
—
On my reading, the elimination of the common law right doesn’t eliminate the statutory right to self-defense. So, in the event that an intruder, or an officer, was unlawfully entering a person’s home, reasonable or deadly force would be authorized to terminate that entry. The statute doesn’t make any exception for law enforcement’s unlawful entry, and I can’t find anywhere else in the Indiana Code that would abrogate the statutory defense if the person making the entry was law enforcement. The question would simply turn on the lawfulness of the entry.
Maybe I’m overlooking something, so I’d welcome if somebody had a different reading that I have missed.
May 13, 2011, 2:01 pmhappycynic says:
Reading the facts of the case I think the result was right. This guy basically started an altercation with the police, then retreated to an apartment he was in the process of moving out of, then attempted to play the “you can’t cross this line” game with the police. The court’s reasoning, however, is not well thought out. A blanket denial of the right to resist unlawful entry will have unfortunate consequences and was completely unnecessary to decide this case.
May 13, 2011, 2:09 pmSnaphappy says:
Take that, Branch Davidians. Cue the black helicopters.
May 13, 2011, 2:09 pmGMason says:
“The Second Amendment, for every wrong there is a remedy.”
May 13, 2011, 2:11 pmTax Cow says:
Got to protect the “only ones” from us tax cows.
May 13, 2011, 2:15 pmAnderson says:
“So much for William Pitt,” I thought when I saw this; glad the dissent made the quote.
Bad decision.
May 13, 2011, 2:16 pmThat Guy says:
No, police don’t engage in any physical torture or anything like that anymore. Tell that to the numerous victims of Jon Burge’s “interrogations.”
Bad law…
May 13, 2011, 2:16 pmRaoul says:
Every defendant should be free to argue whatever they wish in their defense. Let the jury decide. Where in the Constitution is a judge authorized to dictate what a defendant may or may not argue in his own defense?
Maybe lawyers who are prosecutors, politicians and judges should stop feigning their phony respect for jury trials and instead institute star chamber proceedings to throw citizens in prison.
May 13, 2011, 2:17 pmSteve says:
William Pitt’s rule has unfortunate implications in domestic violence situations.
May 13, 2011, 2:18 pmDilan Esper says:
I agree with the dissent at least in part.
Obviously, there can be no right to resist the police when they have properly identified themselves and have valid legal process to enter. “POLICE! OPEN UP! WE HAVE A WARRANT!”, etc. And in exigent circumstances, the police can enter first and identify themselves second, of course.
But the flip side of this is that you shouldn’t be deprived of your right of self-defense just because someone identifies themselves as police (that would make it very easy for burglars and criminals, who could just identify themselves as police officers to get access) or because someone who a homeowner can’t determine to be a police officer with a right to be there is entering their home. Heck, I can even imagine situations (i.e., grossly excessive force) where I would hold that a homeowner has a legal right to use deadly defensive force against a properly identified police officer who had a legal right to be there. It’s an extreme hypothetical, but if you come home to find several police officers who are beating your unarmed wife to death in your home, you should have the right to draw your sidearm and shoot to kill in order to save her life.
The point is, this should all depend on all sorts of factors such as (1) whether the police have adequately identified themselves, (2) whether they have sufficient legal privilege to enter, (3) whether their actions– especially any actions that are risky to life and limb– have legal justification, and perhaps other factors as well. A categorical approach to this question seems quite wrong to me.
May 13, 2011, 2:22 pmRandolph says:
The problem with trying to break this into “obviously intentional misdeeds” and “honest mistakes” is it fails to address the problem of willful or feinted ignorance of the law. The extent to which we encourage police officers to play fast and loose with the law and then pretend that they didn’t know any better is disturbing.
Maybe self-defense isn’t the best way to prevent police misconduct (your right that it is unlikely to be successful and very likely to result in further injury of all involved), but the list of preventative measures given by the court is a joke. Civil remedies never happen, internal review is arbitrary and political, exclusion only helps the guilty, and bail and a “prompt” (haha) hearing are some pretty weak sauce after getting beaten up (or property destroyed, etc) by the police.
We’ve gotten to the point where police commonly and openly threaten abuse of discretion. If we’re going to authorize people to use violence on behalf of the government we need to implement more serious safeguards against abuse of that authority.
May 13, 2011, 2:27 pmAnderson says:
William Pitt’s rule has unfortunate implications in domestic violence situations.
I don’t think so, really. Warrants, exigent circumstances … I think the law is in good shape.
May 13, 2011, 2:30 pmTJ says:
Harsh, but so true. Jury trials have become a joke. They frequently consist of the Judge and prosecutor working together to figure out how they can get around the laws and the Constitution in order to convict a defendant.
May 13, 2011, 2:31 pmNessuno says:
Dilan Esper has the right of it.
In most cases, someone would not have the right resist the police. But in some cases you surely do. The court here should have spelled out some framework of limiting factor, but it didn’t.
Indeed, the court could have very easily said that the defendant was not entitled to that jury instruction based on the facts he presented to the jury (or wanted to present) because no reasonable jury could conclude that the entry was illegal. (Most people here seem to think the entry was justified by the wife’s invitation or exigent circumstances, as do I.)
Instead, we got a blanket rule that says that a person can never resist police, and as such can never argue that in court. It goes way further than it needed too.
May 13, 2011, 2:32 pmskipsul says:
Would this also be a case of “Not respectin’ authoritah”? This is spooky.
May 13, 2011, 2:36 pmTJ says:
Apparently they don’t feel bound by the US Constitution or the US Supreme Court precedents either.
May 13, 2011, 2:38 pmKirk Parker says:
Dilan,
Make this a rare day: I’m with you 100%.
May 13, 2011, 2:38 pmTJChiang says:
If I get this right, there would be no right to resist no matter how illegal the entry, and no matter how long the officer stays. I can see the logic of the court’s opinion, but I think they take it a little too far.
May 13, 2011, 2:40 pmRaoul says:
Or that pesky little pain in the ass known as the Fourth Amendment either.
May 13, 2011, 2:46 pmTJ says:
But …
and
and
therefore
This decision is clearly worthy of becoming binding precedent.
May 13, 2011, 2:52 pmSuperSkeptic says:
Appalled, but not at all surprised.
Sean M, your point might have a little more weight with me were the constitutional protections you cite possessing a little more teeth and a lot less exceptions. This case has to be viewed in the historical context of the gradual dissolution of the right of self-defense, and not just vis-a-vis the state.
[edited to add that I agree with Raoul's first paragraph. His second is hyperbolic.]
May 13, 2011, 2:53 pmChris Travers says:
Yeah. I’d agree.
One further concern I have is how this plays into the trend of late night drug raids. If they have the wrong address, you don’t know FOR SURE that an armed robbery is not in progress. That the police officers incur the risk of actual resistance in these cases seems like a good way to prevent them.
There was that guy in Louisiana who was convicted for shooting and killing a police officer and not given a chance to raise self-defence as a defense. Although the court held that was in error and remanded for a new trial, the capacity here for problems seems very high to me.
May 13, 2011, 2:54 pmohgoodgrief says:
Speaking as a cop, as a cop leader, as an instructor in basic police procedures, as the director of a police academy, as a teacher of ethics for police officers: In the “golden era” of law enforcement -if there ever was such- one might excuse such a ruling by a court.
But in these times, with government at all levels reaching down our throats, this ruling is naive at best. At worst, it is an attempt to wrest away one of our Constitutional rights.
I would hope that you legal folks would take up the cause and fight this in the courts before the good citizens take matters into their hands. Such rulings are what revolutions are fought over.
May 13, 2011, 2:57 pmJJ says:
Why is this an anomalous result? The officer should (a) be better informed of the law he’s supposed to uphold, and (b) be able to drive carefully enough that a “low speed pursuit” doesn’t end with his spinning out. If he is both ignorant of the law and illegally pursuing you and a poor driver, why woudl that make you liable?
May 13, 2011, 2:59 pmTJ says:
In the 1920s some of these legal “scholars” were also arguing that our other rights were obsolete too. Some of their friends over in Europe made similar arguments during this same time period.
May 13, 2011, 2:59 pmRaoul says:
If I was in the business of breaking into peoples homes for the purpose of robbing, raping and murdering, I would surely yell “police with a warrant” a second or two before bashing in the front door.
If the average person took this ruling seriously, it would make that business a lot safer.
May 13, 2011, 3:08 pmSean M. says:
I think Dilan overreads the decision somewhat. It does not say that one cannot resist excessive force by police; it only says that one may not repel an illegally entering officer with force. There’s a difference. The position advocated by the dissent would allow you to use force to expel even a non-violent officer who illegally enters your house. What self-defense rights you have against an officer using excessive force is to be left for another day.
May 13, 2011, 3:08 pmDMB says:
I have to wonder, is the Indiana supreme court elected, or appointed? I ask, because this strikes me as being a politically motivated ruling.
May 13, 2011, 3:09 pmJordan Stover says:
Three candidates are selected by a commission and sent to the Governor for his selection.
And I still think people are missing the broader point. This abrogated the common law rule. It did not modify the statutory rule at IC 35-41-3-2, which says you can use force, including deadly force, to stop an unlawful entry into your occupied dwelling. There does not appear to be any law enforcement exception.
May 13, 2011, 3:13 pmChristopher Taylor says:
I think that this ruling makes a separate, superior class of citizen of law enforcement (sort of like the absurd law against lying to federal officers). Anyone invading your home, no matter who, in an unlawful manner, triggers your right of self defense. Always.
May 13, 2011, 3:13 pmBruce Hayden says:
I frankly don’t see the problem with valuing individual liberty over officer safety. And, that is where I think the majority went wrong. If the entry by the officers was illegal, then there should be no reason to protect them.
Yes, this ups the risk for them – they now have to determine whether or not their entry into someone’s house is legal or not. Or, at least make a lot more sure than they seem to now. But, this ruling seems to me to be a pretty green light for the police to break down doors first, and then determine whether it was legal or not later. All in the name of officer safety.
There is a reason why officer safety is not included in the Bill of Rights, and that is because they are part of the danger being protected against. Not always. Or, even close. But enough to include protections against them into the Bill of Rights.
May 13, 2011, 3:18 pmErik says:
For the record: “The wife pleaded with the defendant to let [the officer] enter.” This is not the same as begging the officer to come in or even consenting. This is the wife basically recognizing the escalating the situation for what it is and pleading with her husband to just let the cop do what he wants.
May 13, 2011, 3:20 pmWalt says:
Mostly, the court didn’t want there to be a trial on the issue of whether or not the cops had permission or justification to enter. If they find there was an improperly refused instruction, wouldn’t a new trial be the result?
May 13, 2011, 3:21 pmThis way, defendant stays in jail and the citizens can look forward to cops running into their house, unannounced, at two a.m.
Malvolio says:
That’s just it. A cop is (I would think) less likely to unlawfully kick down a door if he think the home-boy on the other side will kick his ass and then skate.
May 13, 2011, 3:22 pmToby says:
Well, the point is, that this *is* entry into a domicile, as Pitt suggested, and not some sort of hypothetcal high speed pusuit in a car, and the 4th Ammendment constituional protections are what this guts.
Furthermore, the erosion of 4th ammendment is accelerating. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” except it does not include papers and effects stored electronically, and it does not include effects stored on a smart phone, and it does not include homes if they can be inspected by high-tech devices that can be purchased by the public, and it doesn’t include the home if the police are heavily armed and alleging drugs are involved, and with this it does not seem to apply to a house either.
Exactly which because of the “Constitutional protections we have today in the Fourth Amendment” do you beleive we still have under developing jurisprudence?
May 13, 2011, 3:24 pmDan Hamilton says:
Nice thing about Texas if the police use excessive force you have the right to defend yourself and even use deadly force if nessary.
That is why the Branch Davidians could not be tried in State court. What they did to the ATF was legal under Texas Law.
Dynamic Entry is defined as massive excessive force. Many people have been killed by mistake. Wrong address, police didn’t even try to verify an enformants story, etc.
AND there have been Home Breakins where the criminals have yelled ‘Police’.
Stupid Judges!
May 13, 2011, 3:25 pmOrin Kerr says:
TJ,
I don’t know if you’re a lawyer, but if you’re not, I think it’s helpful to understand the different sources of American law. The U.S. Supreme Court is only an authority on federal constitutional and statutory law. The federal government, and the U.S. Supreme Court, can’t tell the sovereign states what to do with state law unless it violates federal law.
So when the Indiana Supreme Court interprets Indiana law, that is a question for the sovereign state of Indiana, not the U.S. Supreme Court Justices in Washington DC. Although the dissent tries to say that there are overtones of federal law in this case — the Fourth Amendment — I think that’s pretty clearly not the case: This is a case about state law to be settled by state courts, and the federal government can’t tell the states what to do here.
May 13, 2011, 3:28 pmRaoul says:
More than that. The decision says the defendant has no right to argue excessive force, and the citizens of the jury are not competent to decide so it is well and proper that the almighty judge forbid an argument which might confuse or confound the mere citizen/idiots of the jury.
May 13, 2011, 3:30 pmSmooth, Like a Rhapsody says:
From the opinion:
Barnes told the officers that they could not enter the apartment and denied Reed‘s
requests to enter and investigate. Mary did not explicitly invite the officers in, but she told
Barnes several times, ―don‘t do this‖ and ―just let them in.‖
I have been both a prosecutor and a defense attorney (not at the same time, of course) in Indiana for over the course of many years.
1. This is awful police work. Defendant was on his way to departing the home. Separate the parties and assist the defendant’s exit.
2. The officer’s statement that they would arrest him in the yard for yelling weakens the State’s case. The defendant had not done anything illegal prior to his returning to the house.
3. Clearly there was no invitation to enter as far as the fact finder could discover.
4. Why were the police trying to enter? If it was to arrest the defendant, I think an even more explicit instruction should have been given after establishing that the defendant was not arrestable. If the entry was because the wife was in danger, then that is a different story, but it sure looks like the primary purpose of the entry was to effect an arrest.
(note: the Indiana statute criminalizing “disorderly conduct” was NOT violated under these facts while the defendant was outside the house, notwithstanding what the hot-dog cop may have thought.)
Defendant wins; policemen go back to the Academy for remedial training in substantive law and crowd control.
May 13, 2011, 3:40 pmDjDiverDan says:
Since the Indiana Supreme Court is clearly in favor of an “evolving” Common law, I wonder how they’d feel about a newly evolving common law right to assault Supreme Court Justices when they were engaged in stripping the citizens of long-standing rights by judicial fiat?
As to denying the Jury Instruction, I’d go ahead and file a Petition for Writ of Certiorari on whether or not denying the Defendant the right to argue legitimate self defense against unlawful entry was a violation of his 6th Amendment right to jury trial.
May 13, 2011, 3:43 pmrequired says:
I stand in awe of the power of the Indiana courts. Through simple linguistic slight of hand they have managed to equate prevention of an illegal action with redress for the harms of that illegal act. Look what makes a crime OK and resisting it wrong:(1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies. Why that is no less than the complete reversal of over a millennium’s development in Anglo-Saxon law, we are back to the age of were-gild. Why make murder illegal for people who can pay to make those harmed whole again?
Merely because there are remedies available to mitigate the harms caused by an unlawful arrest it does not turn back the clock. The harms have still occurred and nothing a court says or does can make those harms unoccur.
May 13, 2011, 3:50 pmOrin Kerr says:
DJDiverDan,
You win the Hal Turner Award in this thread. Congratulations.
May 13, 2011, 3:58 pmcaptcrisis says:
Some Munchausens around here.
Domestic violence call, husband storms back into the house, won’t let police enter. Wife tells him to let police in. Sounds like the husband’s ready to smack her around. The wife will yell of course, and the officer will come charging in, but by then the jaw’s already dislocated. “One free hit.”
May 13, 2011, 4:02 pmJake says:
A big part of the problem – and one that infuriates many citizens – is that when a citizen tries to claim they did not know or properly understand a law the courts routinely rule that “ignorance of the law is no excuse”, whereas when a LEO performs an illegal search, or arrest, or other illegal act, and claims they misunderstood or didn’t know the correct application of the law, they are more often forgiven than not.
If “ignorance of the law is no excuse” for the average citizen, that should be even more true for those charged with enforcing the law.
This.
May 13, 2011, 4:03 pmbrad says:
The problem with the exclusionary rule is that it only helps guilty people, and its existence has crowded out all other remedies.
1983 claims are so absurdly difficult to win that as a practical matter there is no remedy for innocent victims of police abuse. For my part I’d rather trade the exclusionary rule for respondeat superior liability and the elimination of qualified immunity.
May 13, 2011, 4:06 pmPersonFromPorlock says:
Oh, I think we can make a pretty good guess as to how that’d turn out in Indiana.
May 13, 2011, 4:08 pmZoolbia says:
Thanks to the doctrine of unqualified “qualified immunity,” coupled with this decision, an Indiana police officer who has already or will in future unlawfully violates a victim’s home will never be liable in court. Wonderful. I do admire the chutzpah of the majority’s suggestion that the victim could rely on that modern fairy-tale creature, a “civil remedy.”
May 13, 2011, 4:12 pmRaoul says:
You think he (like Turner)is an FBI informant? Maybe you meant to say the William Cooper or Mark from Michigan award? Ha!
May 13, 2011, 4:15 pmOwen H. says:
If you believe that the entry by police is unlawful, the venue to fight it out is in court, not physically. This should be differentiated from situations where the homeowner did not know they were police when resisting entry.
May 13, 2011, 4:19 pmOrenWithAnE says:
I’m not even seeing an unlawful entry here. The officer could very well have a reasonable belief that the plaintiff, having already possibly committed DV, is returning into the house to further assault his wife, who wants the police there.
I support GA v. Randolph because the normal custom is that co-tenants have the right to refuse entry to guests but I cannot imagine that such a right (or the 4A generally) extends to a right of those reasonably suspected of violence to exclude the police despite the protestation of their victims.
May 13, 2011, 4:23 pmRaoul says:
Except the woman was outside the house, in the presence of the cops
May 13, 2011, 4:26 pmwhen she threw down the man’s duffel bag. She then walked back into the house. If she feared getting a broken jaw, why did she walk back into the house? If the police believed she was in danger, why didn’t they stop her?
Counsel Dew says:
Dissent has it right. There is no problem with domestic violence… the battered spouse may leave. The sole property can not prevent a free individual from leaving their property-the police can escort the battered spouse out of the house or have probable cause to arrest based on preventing the battered spouse from leaving. I didn’t read the battered spouse wanted to leave… rather, the police simply firced their way into the residence without invitation… remember, you can even prevent the police from searching your car if you are asked….
May 13, 2011, 4:29 pmRaoul says:
Continued;
But if I’m reading it right, that isn’t the issue anyhow. The court ruled that the defendant was forbidden from arguing his right to defend against an illegal, forced entry into his home by police because no such right exists.
May 13, 2011, 4:34 pmJake says:
Irrelevant. The court decided that whether the entry was legal or not doesn’t matter. The ruling was that if the entry is illegal, you still have no right to resist.
The Court’s recitation of the facts was somewhat minimal. My impression was that the entry may have fallen under the exigent circumstances rule, but I could be misreading it, or something important might be missing. Regardless, that question probably should have been addressed first – if the entry was legal, he would have no right to that particular defense, if it was illegal, then the question should have been subject to further scrutiny based on the circumstances of the case. This blanket ruling that the right does not exist at all, in any circumstances, is, as the dissent noted, “painting with too broad a brush.”
May 13, 2011, 4:38 pmCourt: No right to resist illegal cop entry into home | Paul M. Jones says:
[...] further commentary at Volokh. This entry was posted in Civil Rights. Bookmark the permalink. ← In Defense of [...]
May 13, 2011, 4:44 pmJohn A. Fleming says:
I expect to see shortly the Indiana Supreme Court over-ruled by We the Indiana People with a Constitutional Amendment. And then I expect the Cops Union to sue in Federal Court, and the Indiana Attorney General refuse to defend it. And I then expect the Federal and State Courts to collude such that no one else has standing to defend the Amendment, and then the Federal Courts will rule the State Amendment unconstitutional based on the facts developed during the one-sided trial. So We the Indiana People will then have to amend the Constitution yet again to both allow standing, and force the Attorney General to defend or resign. At which point the Cops Union will sue again …
And that drip drip drip sound you hear is the acid being applied to Leviathan’s constitutional chains. Perhaps it ought to be amended, “God Save the United States from this Honourable Court”.
Perhaps there should be a judicial corollary to O’Sullivan’s Law: All constitutional Courts will over time destroy the Constitution that binds them.
May 13, 2011, 4:50 pmCarl The EconGuy says:
Even if a fourth amendment challenge to this should be rejected, liberal judges will allow forcible entry under the Commerce Clause. Citizens are required to buy police services provided by the government, at the price and delivery conditions set by the government. This is a clear regulation of interstate commerce case, for a refusal to comply with compulsory consumption of police services will necessarily affect the quantity of police services available in all States and communities. It is only Necessary and Proper that SCOTUS will uphold the prohibition against private resistance against forced police entry as a valid interpretation of the Commerce Clause.
May 13, 2011, 4:52 pmJohn A. Fleming says:
What I found odd, was that the IndSupCt cited legal scholars, model codes, sister-state decisions, Federal decisions, as the basis for Indiana law no longer secures the common law right of self defense against illegal entry and seizures.
Where are the cites of Indiana law, and the explicit decisions of the Legislature to abridge this common-law right? Because the state has oh-so-graciously allowed your heirs to sue after armed men have invaded your home in the middle of the night and shot you dead when you resisted? Did the Indiana Legislature say, oh now that you can sue after you’re dead, we no longer secure that a man’s home is his castle?
May 13, 2011, 5:00 pmRandolph says:
We get about a dozen posts a week about Obamacare on this blog, which is fine, but do we really need to try to veer threads on other interesting legal topics into that same worn-out discussion?
May 13, 2011, 5:09 pmRaoul says:
You’re my kind of cop. Correct me if I’m wrong, I haven’t spent nearly as much time here as most posters, but doesn’t it seem that more of the non lawyer “civilians” who post here, as well as most of the self identified LEO’s, have a healthier respect for the rights of the people vs. state power than do many of the geniuses with law degrees?
May 13, 2011, 5:18 pmSteve says:
Judicial arrogance knows no bounds. Now those black-robed tyrants think judges can determine the common law!
May 13, 2011, 5:20 pmrequired says:
If the police believe that the homeowner is refusing lawful entry, isn’t the appropriate place for the police officers to resolve the issue in the courts, not to attempt entry in face of resistance? (Absent exigent circumstances) if the police are correct no one’s rights are violated and there is no harm if they do not enter conversely if the police are wrong and enter anyway then the homeowners rights are violated and the homeowner is harmed.
May 13, 2011, 5:22 pmSteve says:
Let’s say the police have a warrant, and the homeowner believes it is not a lawful warrant. What then?
May 13, 2011, 5:31 pmTJ says:
Bush v. Gore ?
While there may be some debates about due as to what falls under the category of due process but I am pretty sure that an illegal home invasion or illegal arrest does not qualify. So therefore, a person’s 4th Amendment rights cannot not be taken away due to an illegal home invasion or illegal arrest. If a person has the right to defend themselves or their home, this right cannot be taken away as a result of an illegal arrest or illegal invasion of their home.
I would like to make to make clear I take no position on this particular case. I have no nothing to say with regards to the husband the wife or the police officer involved or the facts of the case. I was not there.
My problem is with Indiana Supreme Court going out of their way to sweep away a long recognized right without even having a coherent argument for doing so. These what appears to be an ruling based on the political beliefs/mentality of the justices. I have encountered this in judges before.
No, I am not a lawyer. I just play one on TV.
May 13, 2011, 5:36 pmXenocles says:
Not bad, but you forgot to work “general welfare” in there.
May 13, 2011, 5:38 pmIncredulous says:
To chime in with an opinion entirely uninformed by any kind of legal education, this is revolting.
May 13, 2011, 5:39 pmNI says:
This is another discussion for another thread, but the process by which someone becomes a judge is designed to weed out people who take individual rights seriously. The difference between a liberal judge and a conservative judge, on police abuse cases, is that the liberal first goes through the motions of giving lip service to individual rights before eviscerating them, whereas a conservative doesn’t even bother with lip service.
May 13, 2011, 5:50 pmrequired says:
Well at that point the police may very well enter (although they should still check if possible) because the issue has already been resolved before a court. If a warrant exists then the entry is lawful even if the warrant itself is unlawful.
May 13, 2011, 6:00 pmAnonymous says:
All states have laws mandating that when officers show up to the scene of a domestic conclict, they are mandated to arrest any person(s) acting abusive or any person(s) showing outward signs of having been abusive/raging/volatile (red face, veins in neck sticking out, heavy panting/heavy sweating, etc)
The first officer on the scene should be stripped of his badge for failing to arrest the husband who was still in the throes of his physically threatening and abusive tantrum. The officer allowed a ranting and raving husband continue to verbally abuse his wife and follow the wife back into the home to do who knows that to her.
The husband lost his rights the moment the officer entered the scene. And that officer should have lost his job for failing to arrest the guy.
May 13, 2011, 6:06 pmRaoul says:
Then I suppose they place the homeowner under arrest. In this case they had no warrant. The woman, who reentered the house, obviously didn’t believe she was in danger. The cops who stood by as she reentered the house didn’t believe she was in danger.
So why did thy force their way into the home? Did they need to use the toilet? Did they see what looked like past due library books on the coffee table? What justifies forced entry?
May 13, 2011, 6:11 pmJake says:
Wrong order. They were both outside, she went back in, then he followed her.
I think there’s a very strong argument here for the exigent circumstances exception making this a legal entry, though I could be wrong (IANAL, and I’m also not familiar with how Indiana case law would apply in these circumstances).
May 13, 2011, 6:31 pmRaoul says:
Really? If you thought the person you shared the house with, roommate, spouse, whatever was a threat to your person, would you wander away from the cops and walk back into the house? I wouldn’t.
May 13, 2011, 6:41 pmparared says:
Out of curiosity, what if the warrant is for next door, and the LEOs have screwed up the address?
May 13, 2011, 7:40 pmCrunchy Frog says:
Credentialist much?
In case you hadn’t noticed, appeals to authority don’t fly very well in these parts.
May 13, 2011, 8:11 pmJake says:
Neither would I. But many abused spouses do – which is one of the reasons many states require police to arrest someone in a domestic dispute even if there’s no evidence of abuse.
Also, just because she apparently didn’t believe there was a threat doesn’t mean the officers didn’t – all they had to go by was the dispatch information and what they saw when they arrived.
Considering that he was extremely confrontation with the officers when they arrived, I think most courts (and possibly juries) would give the officers extra leeway in erring on the side of caution based on what they knew at the time.
Of course, I think the legality of the entry, and his defense of having the right to resist if it was not legal, should have both been questions for the jury to decide.
May 13, 2011, 8:13 pmSteve says:
I think you misread that post in a pretty serious way.
May 13, 2011, 8:14 pmJohn A. Fleming says:
From the comments above, it is not obvious that the facts were such that home invasion and seizure was a lawful exercise of police power.
Hard cases make bad law, so they say. Isn’t this an example, where the Courts ought not to restrict our ancient rights and liberties, on the
May 13, 2011, 8:17 pmpretextpresentation of one hard case? Shouldn’t it be that restricting rights is a job best left to the Legislature, or to the People?Visitor Again says:
I don’t like the majority opinion either, but I think the court had to reach the question and could not have gone off on the ground that the police entry was legal.
Usually whether a police entry is legal or illegal is a question for determination by the court and not the jury. It is raised by a motion to exclude evidence before the trial.
Here the question arose by the defendant’s proffer of a jury instruction supporting a defense to the charge. A defendant is entitled to raise defenses that have support in the evidence even if there is conflicting evidence, even if the court itself would not find that the defense existed on the evidence presented. That is because the defense is a question for the jury.
Here the trial court declined to give the instruction to the jury. Hence the appellate court had to reach the question because its view of the legality of the entry would have been no substitute for the jury’s view. If the defendant had the right to resist an unlawful entry, he had the right to a jury trial on the matter.
May 13, 2011, 8:26 pmmariner says:
I agree and, having read this blog since its inception, believe this is more true as time goes on.
Lawyers and judges make their livings convincing each other that words don’t really mean what they clearly say, and we lay people are just too unsophisticated to understand these things.
May 13, 2011, 8:49 pmRandolph says:
Sometimes it’s true.
May 13, 2011, 9:13 pmTJ says:
A perfectly reasonable opinion from the Court of Appeals which the Indiana Supreme Court decided to replace it with this monstrosity:
Something tell me that Barnes v. State is not over yet.
May 13, 2011, 9:24 pmbrad says:
If all states have such laws, surely you can cite one?
May 13, 2011, 9:59 pmSkyler says:
The dissent writes,
Would that police behavior were treated criminally. Police are given great power, they should be held to higher levels of liability.
I think the majority also ignores that a corrupt police force and local government can run roughshod over individual rights and quash civil complaints. Civil remedy is of little value if the civil authorities conspire to deny rights.
May 13, 2011, 10:05 pmrequired says:
In that case one would hope that when the homeowner says “that’s not a search warrant for this house, it’s for next door”, the officers would check the warrant, see the mistake and apologize profusely. We are straying far from the original here, in which the idea was violate the rights of citizens when there is a doubt about whether or not such violation is lawful and fight about it in court after or fight it out in court before violating rights when there is a doubt about it;s lawfulness. You cannot unarrest someone, or unsearch their home, the most you can do is compensate them for the harm cause by the violations.
May 13, 2011, 10:22 pmHocking Hick says:
Uhhhh… little late to fight it out if you’re dead.
But of course, LEOs would never make the mistake of killing an innocent citizen in their own home…
May 13, 2011, 10:31 pmHocking Hick says:
Amen.
May 13, 2011, 10:33 pmScott says:
The likelihood that police officers get hurt serves as an incentive for officers to shy away from illegally entering a persons home. The likelihood that the victim (the person whose home has illegally been entered) would be able (in a sane legal system) to evade conviction for assaulting an officer serves as a further deterrent to officers contemplating illegally entering a persons home. What this decision does is eliminate any sense of legal or physical danger upon approaching the threshold of a persons home and explicitly authorizes public authorities to trample the private property rights of any and all citizens with whom they come into contact.
Officers will now view peoples homes as extensions of public space, into which they can intrude with complete impunity.
May 13, 2011, 10:48 pmOrenWithAnE says:
Because then we’d hear even more complaints against the police for seizing (clearly preventing her from returning into the house would be a seizure under 4A) someone merely for being a victim.
Did you miss the part about the woman wanting the police to enter?
You can refuse consent, but if they have probable cause, they can search even without your consent.
Despite being backward logically, that makes sense. Before you want to consider the factual question of whether the entry was lawful, you want to consider the legal question of whether it matters whether the entry was lawful.
What makes you think that a potentially continuing DV is not exigent? Does the man get one free hit before the circumstances are exigent enough?
Nor did the ISC hold that it was. They held that whatever the legality, it is not for the (obviously partial and likely wrong) homeowner to decide the legality (based facts he couldn’t possibly know, given that legality turns on what the officers reasonably believe) of entry.
Just as surely you can google for it. Here’s the MA one:
May 13, 2011, 10:49 pmOrenWithAnE says:
The only problem here is that officers are more likely to get hurt in a legal search since presumably legality of search correlates at least weakly with illegal conduct and therefore tendency to violence.
So if incentive not to get hurt was at play, officers would always search random houses figuring that, at worst, they have no better than random odds of hitting an armed criminal — vis-a-vis searching a house that has a somewhat higher probability of containing armed criminals.
May 13, 2011, 10:52 pmScott says:
Harming the rights of homeowners is not something the police are overly concerned with. Mostly because when they do so and a court rules that they did the right thing the result is an expansion of their authority. Even if they do so and a court rules they did the wrong thing, there is no consequence. If you do this ten times, eventually you’ll get the ruling you’re looking for and you have more authority to trample on the rights of citizens in the future.
May 13, 2011, 11:01 pmScott says:
If police have a warrant, as required by the fourth amendment, there is no question of legality and therefore no increased likelihood of violence. So get the damn warrant already, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Warrantless searches are inherently risky, and rightly so. If the emergency is so great as to justify an explicit violation of the very document that authorizes the very existence of the office held by the person conducting the search, they can live with a little extra risk.
May 13, 2011, 11:11 pmRaoul says:
But if the police thought her in danger why did they stand by as she left their presence and reentered the house? Why did they allow Mr. Barnes to reenter the house? The cops did not then approach the door for the purpose of arresting Mr. Barnes, but for the purpose of entering the premises. Mr. Barnes was only arrested when he resisted their forced entry into his home.
Seems the cops were more interested in entering and poking around the man’s home than they were in preventing domestic violence.
May 13, 2011, 11:22 pmJake says:
For the first, I would guess that they didn’t believe she was in any danger if she was away from him (which she would be if she was in the house and he was outside with them), or that they wanted to keep the two separated (not uncommon in these situations). For the second, I really couldn’t guess from the information we have here, which is the equivalent of an impressionist artist’s pencil sketch – just enough to give us a general idea of what happened, without really giving us any detail.
Like I said, it should have been a question for the jury. The real problem here is the Court deciding that it didn’t matter.
May 13, 2011, 11:42 pmEric Rasmusen says:
The logic of the Court, and perhaps the holding, does imply that if a policeman tries to rape a woman and she resists, she should be convicted of battery, doesn’t it? The COurt says that resistance just creates extra violence, and she should wait and sue for money damages afterwards.
May 13, 2011, 11:42 pmZiz says:
When does Orin’s equilibrium adjustment theory start to save us?
May 14, 2011, 12:33 amZiz says:
The increased threat of an ass whooping might temper some of the police cowboys at the margin.
May 14, 2011, 12:46 amohgoodgrief says:
Probably not. Cowboy cops” are the type who don’t believe anything bad will ever happen to them. It’ll always be “the other guy.”
Just from the sketchy “facts” in the article, it would appear that the cops lost (or never gained) control of the situation. Just like lawyers, there are effective ones and ones not so much so.
May 14, 2011, 1:37 amUrsus Maritimus says:
If a warrant exists then the entry is lawful even if the warrant itself is unlawful.
May 14, 2011, 1:49 amPinandpuller says:
Ambrose Bierce said a judge is a lawyer who knows a governor.
May 14, 2011, 2:08 amRicardo says:
I don’t see how. The police arrived pursuant to a domestic dispute call and the husband re-entered the house and barred access to the police who were in the middle of an investigation.
I can’t see how what the husband did could be legal. Probably they should have stated a legal pretext under which he was going to be placed under arrest for obstructing them rather than just barging into the house, though.
May 14, 2011, 2:57 amRicardo says:
That’s probably also true. Skilled cops rarely have to threaten anyone with a “contempt of cop” arrest the way these guys did. All that did was make the man even more pissed off than he was already.
May 14, 2011, 3:02 amRicardo says:
Cops often come in pairs and with lots of weapons at their disposal. Unless you are Jackie Chan or Anderson Silva, I don’t think most cops will be that concerned.
May 14, 2011, 3:13 amduffy pratt says:
A question of statutory interpretation. The assault on a police officer charge required the state to prove “that Barnes knowingly or intentionally touched the officer in a rude, insolent, or angry manner while the officer was engaged in the execution of his official duty.” So why should the right to defend his home be a defense? It seems to me that the better argument was that the officer, when he unlawfully invaded Barnes’ home, was no longer executing his official duty. Thus, the state failed to prove an element of the crime.
Also, people should take note that the only one hurt in this incident was Barnes, who ended up in the hospital after a bad reaction to being tazed. No matter what the law is here, the police really blew it and should end up having a serious review for their conduct. The guy was leaving when they showed up. So it looks like they are the ones who caused the escalation.
May 14, 2011, 3:18 amTJ says:
The Indiana Supreme Court is simply using this case to advance a long standing political agenda of American Bar Association / American Law Institute and other interests. The following are important reading related to this case. The first two are cited in it.
“NOT A LAW AT ALL” : A CALL FOR A RETURN TO THE COMMON LAW RIGHT TO RESIST UNLAWFUL ARREST by Craig Hemmens and Daniel Levin (1999)
https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=29+Sw.+U.+L.+Rev.+1&srctype=smi&srcid=3B15&key=ea22d2e43c84e9006cd4b54d6e9c6f1a
The Uniform Arrest Act by Sam B. Warner (1942)
http://www.jstor.org/pss/1068221
Resisting Unlawful Arrest in Mississippi: Resisting the Modern Trend by Craig Hemmens (2000)
http://www.boalt.org/bjcl/v2/v2hemmens.pdf
______________________
_____________________
http://www.law.msu.edu/king/2006/2006_Kloet.pdf
_______________________
May 14, 2011, 3:43 amDMB says:
I dunno, I think the ruling was…well, I guess not being a lawyer and all…but it seems to be bad law, unless the judges in question feel that only a select few deserve 4th Amendment protections. With the wife pleading, and a DV call already on-record, it would strike me that the cops had “Probable Cause” or “Reasonable Suspicion” that a crime was taking place/had taken place, IIRC, in some jurisdictions, that’s sufficient, as would a reading of her pleas to her husband to let the Police enter as an implied invitation to do so.
Probably shaky logic, but I suspect MY logic is less shaky than the idea that a home-owner may not defend themselves in the event of an UNLAWFUL entry by police.
Does anyone know if Indiana recognizes the Castle doctrine?
May 14, 2011, 6:58 amcboldt says:
– Does anyone know if Indiana recognizes the Castle doctrine? –
May 14, 2011, 7:45 amThe answer to that is now mixed.
As a matter of statutory law (signed into law in 2006), a person has no duty to retreat, and may use “reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force.”
As a matter of binding legal precedent, the statute is inoperative when the unlawful force is being exerted by the government.
jrose says:
Can you provide more detail as to why you think the dissent is wrong?
May 14, 2011, 8:25 amBill says:
I agree with everything you said. It fascinates me that “ignorance of the law is no excuse” does not apply to those who are supposed to enforce the law that they are ignorant of.
May 14, 2011, 8:29 amcboldt says:
Question put to Orin Kerr: — Can you provide more detail as to why you think the dissent is wrong? –
May 14, 2011, 9:18 amI don’t pretend to speak for Orin, but my impression is that his objection was to invoking the 4th amendment as determining the outcome of the case. I don’t think he expressed an opinion as to which side of the Court has a superior argument (other than the obvious, by way of brute force the majority is always “right,” or at least always creates precedent that is supposed to be controlling).
I believe Orin’s point was that this case is about common law and the Indiana Constitution (and now that it’s been brought up, perhaps the Indiana statute that give the people a right to resist unlawful entry), and none of those sources of law is the fourth amendment.
cboldt says:
Gee Louise cboldt, read the dissent before inserting foot in mouth. I see the dissent does cite the fourth, but it isn’t clear that their point depends on the fourth amendment even exists.
May 14, 2011, 9:21 amOrenWithAnE says:
This might be true if every warrantless search was a violation of the Constitution.
Quite the contrary, it will only make them faster on the taser and less likely to elicit peaceful surrender, thus blowing up more situations into violence.
Indeed. The police were markedly ineffective here, but exigence doesn’t turn on whether some theoretically better policing could have avoided the incident.
May 14, 2011, 9:37 amcboldt says:
Looking at the opinion, rather than just the excerpted parts.
No right, none, not anywhere in the law. This is an unqualified holding that reasonable resistance will not be “permitted” (justified after the fact) by the court, if the unlawful actor is a police officer. Such reasonable action may be charged, as a matter of law, as criminal battery.
May 14, 2011, 9:47 amReasonable resistance to unlawful entry is criminal battery!
– We conclude that public policy disfavors any such right. –
The Court, making policy; and making policy that is directly opposite what the legislature has passed. Fascinating.
Too bad the Indiana statute did not make an appearance in this case.
Dowlan Smith says:
From the account the wife possibly invited/told the husband to go back inside.
“At this point the defendant’s wife came outside, threw a duffel bag in the defendant’s direction, and told him to take the rest of his stuff.”
What is the location of “the rest of his stuff”? Probably inside.
May 14, 2011, 10:10 amArthur Kirkland says:
Bingo. With few exceptions, the better lawyers do not become judges, prosecutors or elected officials.
May 14, 2011, 10:11 amjrose says:
The dissent claimed there was a Fourth Amendment issue. Why is the dissent wrong on that point?
May 14, 2011, 10:24 amcboldt says:
– The dissent claimed there was a Fourth Amendment issue. Why is the dissent wrong on that point? –
May 14, 2011, 10:42 amBoth sides claimed the fourth amendment! I think Orin’s point is that this case is about battery, and not the fourth amendment; in other words, I think, that the two issues can be separated. Obviously there is a fourth amendment component to the case, because the police entered the home, etc. But if the dissent is wrong for referring to the fourth for authority, so is the majority wrong, for the same reason.
Anyway, if I am reading Orin right, his point is that the “right to use reasonable force to resist” is not found in the fourth amendment; and that the dissent seems to rest its position on the fourth amendment.
A general point of confusion that is common in discussing the law is that a certain right can be obtained via more than one authority; so that, to pick an example, “the right to be secure in ones home” may flow from a state constitution, common law, or the federal constitution. Even when the outcome is the same, it is educational to specifically point out the authority that played in the case at hand. Not that this is the case in “reading Orin,” I think his point is that this is not a fourth amendment case, period.
Never Yet Melted » Saturday Links says:
[...] Orrin Kerr discusses this atrocious ruling at Volokh Cospiracy. ————————————————————— Orrin Hatch on democrats: “They play politics very, very tough, they play it well, and they don’t give a damn about what’s right and what’s wrong.” That is the essential truth about liberal pols in a nutshell. ————————————————————— Little girl likes to play with dead squirrel. (The sighthound killed it.) [...]
May 14, 2011, 11:42 amDjDiverDan says:
I resent that – I think it is gross overreaching to equate idle speculation (mixed with perhaps just a bit of wishful thinking from the emotional side of my brain) with actual threats of violence.
May 14, 2011, 11:49 amMontjoie says:
Is there any hope for an appeal to federal court?
May 14, 2011, 11:57 amBarb says:
Police are called about domestic dispute. Angry husband enters house following the damsel in distress –of course, the police should follow –with or without her urging. Regardless of who owns the house. I don’t think a policeman’s presence on my property where I don’t want him –but my spouse does –is grounds for me to attack the law enforcement officer. One wonders why such a suit would even make it to court.
May 14, 2011, 12:25 pmGBED says:
I find it hard to believe in a civilize society that anyone would argue the court ruling was incorrect. Police officers make mistakes particularly when making decisions in haste. Usually when these incidents occur, the precipitating incident involves some form of violence by the people who called the police in the first place. Why allow a mistaken entry turn into an all-out war. The police will always win that battle because there are more of them than the lone citizen. The citizen stands a far better chance of winning a civil liability case and surviving than he has resisting the police.
May 14, 2011, 12:33 pmEric Rasmusen says:
Jordan Stover made two good comments. First, he noted that Indiana self-defense statute 35–41-3–2 makes it legal to forcibly repel a police officer entering illegally. That did not come up in Barnes because, it looks like, Barnes did not ask for a jury instruction based on that statute, only for an instruction based on the similar common-law right. The judges deleted the common-law right; that does not affect the statutory right.
Second, he noted that in Indiana, Supreme Court judges are picked by a commission– in effect, by the Bar Association,w hich picks 4 of 9 members, the Chief Justice being the 5th (and the governor getting to appoint 4, a useless minority if he doesn’t ahve the Chief Justice on his side). As I recall, Governor Daniels torpedoed an attempt to reform that system.
May 14, 2011, 12:34 pmEric Rasmusen says:
Quite right. There is a 4th amendment component, but not a 4th amendment issue, because the question isn’t whether the entry was illegal or not; it’s what the homeowner can do about an illegal search. Nobody would say that the 4th amendment prohibits a law making it illegal for the homeowner to track down the policeman’s family a week after an illegal search and shoot them all, even though that’s one way of deterring illegal searches.
.
To make the 4th Amendment relevant, one must argue that
(a) Police entering the house but clearly not intending to search or seize anything are covered by “unreasonable searches and seizures”.
(b) “The right of the people to be secure… shall not be violated” requires that the victim be able to forcibly repel the illegal entry rather than some other deterrent such as civil suits against the enterer or criminal penalties on the enterer.
I’d maybe go with (b) being correct, but really the dissent should have been limited to the majority being wrong on the common law issue rather than accepting that they were correct there and objecting on constitutional grounds.
May 14, 2011, 12:49 pmcboldt says:
– The judges deleted the common-law right; that does not affect the statutory right. –
May 14, 2011, 1:01 pmThey didn’t address the statutory right. I’m not sure what the status of the statutory right is, against police officers. What the court held was, “there is no right to reasonably resist unlawful entry by police officers.”
The policy justification is comprehensive, that is, it depends on the holding being exactly what is says (NO right, not just no common law right), or else the justification for the holding collapses.
Indiana Supreme Court Shit-cans Fourth Amendment « The Foxhole says:
[...] No Right to Assault Police Officer Entering Home Even if Entrance is Unlawful, Indiana Supreme Court… (volokh.com) [...]
May 14, 2011, 2:06 pmRaoul says:
Exactly. Which is why defendants must be free to defend themselves as they see fit before a jury of their peers. Where in the Constitution or Bill Of Rights do you find authority for the court to dictate what a man may or may not argue in his own defense?
May 14, 2011, 2:10 pmDMB says:
Seriously?? At what point in a civilization is it a good thing for the very people tasked to uphold the law, to be permitted to break it at whim? Here’s the deal: the Entry was ILLEGAL, that makes it a crime, there are plentiful procedures and processes police have available to make an entry legal, if it is, indeed, critical to do so. the court accepted that the entry was unlawful(i.e. a violation of the law), the police are (theoretically) supposed to uphold the law…all of the law, not just the bits that are convenient at the moment.
The ruling sweeps WELL beyond the original situation-it is a blanket license for the kind of “Policing” you find in third-world dictatorships or the old soviet union.
There is something VERY wrong with a court deciding that the law only applies at the convenience of the State and its Agents.
May 14, 2011, 2:35 pmNo more 4th Amendment Protection for Indiana residents Supreme Court rules | International Times of Dominica says:
[...] No Right to Assault Police Officer Entering Home Even if Entrance is Unlawful, Indiana Supreme Court… (volokh.com) [...]
May 14, 2011, 2:40 pmGBED says:
Let’s take your argument to its logical extreme. What you are saying is a citizen, absent initial physical violence by the police, should be able to resist an unlawful arrest or unlawful entry into his dwelling with physical violence to include defending himself and his property with a firearm. The police will respond by escalating their level of physicality, to include firearms, to overcome the citizen resistance. Does that make sense to you [why run the risk of people being killed when the issue can be settled in a court of law]?
May 14, 2011, 2:46 pmJohn David Galt says:
Are members of the state Supreme Court in Indiana subject to periodic retention votes by the public, as they are in California? If so, I’d like to see the names of the three in the majority spread around where they can become the objects of a campaign to defeat them.
May 14, 2011, 3:03 pmGBED says:
Sir, please, every time a judge votes in a way that you don’t like he should be removed from office. Give me a break. The court is this case is only applying a rule that is becoming the generally accepted practice in the US.
May 14, 2011, 3:08 pmaaa1111 says:
When defendant resisted police officers, the common law of Indiana did allow resistance to illegal police entries.
Therefore, whether the Indiana Supreme Court later overturned that common law right or not, defendant should be tried under the law existing at the time of his resistance.
Otherwise, it is an ex post facto law.
May 14, 2011, 3:23 pmTJ says:
Was Indiana uncivilized before the Indiana Supreme Court’s “wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling”?
May 14, 2011, 3:41 pmDavid says:
How is that different from the situation if an armed robber without a badge invades your home? They could shoot you just as dead as a police officer, so why should it be legal to resist any home invasion? Just hide until it’s over and then trust the courts to sort it out. They certainly never get anything wrong.
May 14, 2011, 3:42 pmEric Rasmusen says:
I would disagree. Statutes overrule common law, so a judge cannot strike down a statute because he thinks it is bad policy. A reasonable view of the common law, though, is that it is gap-filling law that judges make based on their views as to what would be a good policy when the legislature has been silent. In this view, the Supreme Court is free to change a common-law rule (but not a statute) if it has become obsolete, or even if they think it was bad policy to begin with.
In Indiana, though, there is a statutory reason why the judge cannot do what I just suggested— changing ancient common-law rules. A friend wrote to me:
May 14, 2011, 3:47 pmTJ says:
It is being done completely illegally and completely dishonestly.
I know for a FACT that the rights of innocent people ARE being violated because of this not so innocent change.
May 14, 2011, 3:54 pmGBED says:
The difference is the officer’s action (9.9 times out 10) is acting in what he presumes to be a lawful manner but the action is later deemed to be unlawful. In other word, a mistake, poor judgment or misapplication of the law is involved. Whereas, the criminal home invader knows he is committing a criminal act and is doing so, most likely, for personal gain or to harm. We have a system of justice in this country, let’s use it.
May 14, 2011, 3:59 pmTJ says:
So based on this theory that police are all respectful of the law, you think that judges should legislate from the bench, ignore clear statutes, ignore the 4th and 14th amendments, ignore clear judicial precedents, and refuse to allow a defendant notify the jury what the law actually says. And anyone who disagrees with this theory does not belong in a civilized society? WTF
May 14, 2011, 4:12 pmtwency says:
So, if a member of the local constabulary forces his way into my home just so he can take a nap on my couch, the fourth amendment isn’t relevant?
If it’s not relevant, what if he then happens upon evidence of a crime in the process of making his way to the couch? Is he free to initiate a search, or perhaps seize the items in question, and ultimately to introduce them at trial?
May 14, 2011, 4:26 pmGBED says:
TJ, David, Raoul, John David Galt , tell me you guys are busting my chops – You can’t be for real.
May 14, 2011, 4:46 pmcboldt says:
– Statutes overrule common law, so a judge cannot strike down a statute because he thinks it is bad policy. –
May 14, 2011, 4:51 pmDo you disagree that the reason the court gave for holding there is NO right to reasonably resist unlawful entry by police officers is a comprehensive reason? The reason given was that “a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence.” I think that reason sweeps in any sort of right to offer reasonable resistance to unlawful entry. Not that I agree with the court, just saying that I find its reason has to sweep in ALL right to reasonably resist, or else the reason/justification doesn’t hold water.
I’m mystified how the highest court in the state could make a ruling like this, without expressing how it interfaces with the statutory “castle doctrine” law. Surely the court is not ignorant of the law, and it is free to take judicial notice.
Scott 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.”
?
May 14, 2011, 5:05 pmcboldt says:
– These judges have no authority to dispense with the common law solely because they believe it conflicts with “public policy.” –
May 14, 2011, 5:07 pmI understand what your friend is saying, but until and unless they are removed from the bench, they have the power to make the ruling (it need not be faithful to any law or constitution), and to enforce it in lower courts.
Can the legislature weigh in and request rehearing and a new opinion, that accounts for the castle doctrine statute? I presume the defendant in this case is screwed, no matter what; and in spite of the fact that the law changed under his feet after winning his appeal.
That brings up another point – who took the appeal to the supreme court and argued there is no right to use reasonable force when faced with an illegal entry by police? This isn’t just a court issue, there are other “public servants” involved here.
TJ says:
On a closely related note:
http://www.southbendtribune.com/news/sbt-high-court-upholds-noknock-warrants-20110514,0,5565980.story
http://www.nwitimes.com/news/opinion/columnists/mark-kiesling/article_b2cec8df-d57c-57a3-84b2-10fcc2a53cc0.html
May 14, 2011, 6:32 pmCarl N. Brown says:
Yep, the aggrieved can take the state to court.
In the case the complaintant was represented before the supreme court by his private attorney.
The state’s case was argued by the Attorney General and Assistant AG of the state.
A friend of mine who was in a military offciers’ association told me he would much rather be tried by a court martial than by a court civil. At least in a court martial, the attorneys must be of equal rank, the case would be more likely to be tried on the law and on the facts, not on politics or on
May 14, 2011, 6:36 pmpublicity.
TJ says:
http://www.in.gov/judiciary/opinions/pdf/04151005pdm.pdf
I notice that unlike the Indiana Supreme Court decision the Appeals Court decision was well argued and well cited, based on law and precedent. They did not have to rely on “modern” “scholars” from the 1920s and 1940s like the Indiana Supreme Court decision did.
Interestingly the only recent scholarship that the Indiana Supreme Court cited was “Not a Law at All: A Call for the Return to the Common Law Right to Resist Unlawful Arrest” by Craig Hemmens & Daniel Levin three times. Hemmens criticizes the sloppy reasoning contained in the old articles that called for the termination of the common law rights to resist unlawful arrests and home invasions. So obviously the Indiana Supreme Court was aware of the arguments against their position. However they choose to ignore these arguments and just repeat the old arguments from the 1940s as if they had never been refuted or called into question by recent scholarship.
May 14, 2011, 7:01 pmMurgatroyd says:
If only we could get them to apply that philosophy to asset forfeiture.
May 14, 2011, 7:01 pmEH says:
LOL, talk about busting chops!
May 14, 2011, 7:27 pmEric Rasmusen says:
Actually, that’s not correct, for Indiana. See Ind. Code 1–1-2–1 http://www.in.gov/legislative/ic/code/title1/ar1/ch2.pdf
By the way, I wonder if Arizona has a statute like this. If it does, then isn’t federal immigration law also Arizona state law, and hence enforceable by Arizona police and state courts?
May 14, 2011, 8:15 pmTJ says:
Very sad but related news:
Arizona Daily Star (May 14):
http://azstarnet.com/news/local/crime/article_b3177522-baa0-5c9e-9f0d-d3d7da6e9e4b.html
http://pajamasmedia.com/tatler/2011/05/14/the-indiana-supreme-court-decision-makes-less-sense-than-before/
May 14, 2011, 8:28 pmDavid says:
No, because federal immigration law contains specific instructions for how state-level officers can enforce it, i.e. only in concert with the Department of Justice. That would pre-empt such a state law.
May 14, 2011, 9:20 pmScott says:
Yet these are not the grounds upon which his appeal was dismissed. Suggesting either that the police were indeed in the wrong and should not have entered or that the court wished to seize an opportunity to legislate from the bench to strip citizens of the right to be secure in their home from unwarranted searches.
May 15, 2011, 12:19 amOrin Kerr says:
Eric Rasmusen:
It appears you do not know the meaning of the term “bound.”
May 15, 2011, 2:39 amwhit says:
the law in my state, is that “all parties present” who have ownership/privacy interests in the house must consent for the cops to enter.
however, if there is exigency, a community caretaking exception, etc. that does not apply
however…
even if an entry is made and it turns out later the courts rule it was unlawful (for example, rule it wasn’t really exigent enough , etc.) it is STILL unlawful to resist. redress is in court, NOT at the scene.
here’s a case where they denied there was exigency, but i doubt if the homeowner resisted, that would be a defense..
WHERE POLICE DO NOT REQUEST CONSENT TO ENTER RESIDENCE “MERE ACQUIESCENCE” BY RESIDENT TO THEIR ENTRY IS NOT CONSENT UNDER ARTICLE 1, SECTION 7 OF WASHINGTON STATE CONSTITUTION; “EMERGENCY AID EXCEPTION” TO WARRANT REQUIREMENT DOES NOT JUSTIFY NON-CONSENTING WARRANTLESS ENTRY UNDER THE FACTS OF THIS DOMESTIC VIOLENCE CASE
State v. Schultz, ___ Wn.2d ___, ___ P.3d ___, 2011 WL 113791 (2010)
Facts and Proceedings below: (Excerpted from Supreme Court majority opinion)
On April 4, 2004, [police] received a phone call from a resident of an apartment complex about a yelling male and female. Officers [A and B] responded to the call. Upon arriving at the apartment, [the officers] stood outside and overheard a man and woman talking with raised voices.
According to the officers, Officer [A] knocked on the apartment door and Schultz answered. Schultz appeared agitated and flustered. Officer [A] asked Schultz where the male occupant of the apartment was. Schultz denied that anyone else was there. Officer [A] told Schultz that she had heard a male voice in the apartment. Schultz called for Sam Robertson, who emerged from a nearby bedroom. Schultz then stepped back, opened the door wider, and Officer [A] followed Schultz inside.
Schultz testified to a slightly different version of events. According to Schultz, after she said no one else was in the apartment, the officers told her they had heard a male voice and were coming in. Schultz said that she stepped to the side because the officers were entering. Under either version, it appears that neither officer requested permission to enter the apartment, nor did the officers inform Schultz or Robertson that they could refuse a search. Neither Schultz nor Robertson asked the officers to leave nor attempted to prevent their entry. The trial judge found “the defendant acquiesced to their entry,” and the Court of Appeals reported that “Schultz did not object.”
After entering the apartment, the officers separated Schultz and Robertson. Officer [A] spoke to Schultz inside the apartment while Officer [B] spoke to Robertson outside. About that time, Officer [A] noticed Schultz’s neck was red and blotchy. Officer [A] asked Schultz whether anything physical had happened during the argument. Schultz denied anything had and told the officer her neck reddens when she becomes upset. Schultz also explained the argument started because she wanted Robertson to change the locks on the door, but Robertson was instead sitting on the couch. During this time, Schultz was acting “fidgety” and picking things up around the house. Officer [A] asked Schultz to sit in a chair. Schultz complied but continued to fidget and grab at things. Officer [A] warned Schultz she would be handcuffed for officer safety if she did not sit still.
Outside, Robertson told Officer [B] there had been no physical violence and the argument had been about Robertson’s failure to change the locks on the apartment door. The discussion outside took between 5 and 10 minutes before Robertson and Officer [B] returned inside to confer with Officer [A].
Meanwhile, Schultz continued to pick up things off a nearby table, including a makeup bag. At that point, Officer [B] noticed a handgun and a marijuana pipe on the table. Officer [B] secured the weapon and unloaded it. He asked Schultz who the pipe belonged to, and Schultz said it belonged to her son who lived in Vermont. Officer [B] asked Schultz if he could search for more narcotics, and Schultz consented.
At that point, Schultz stood up and began picking things up off the table again. Officer [A] handcuffed Schultz to prevent her from grabbing anything but told Schultz that she was not under arrest. Schultz asked for her antianxiety medication. Officer [B] went with Robertson to go find the antianxiety medication. Robertson and Officer [B] talked while searching for the medication. Their talk led to Robertson’s arrest for use of drug paraphernalia. Schultz then revoked her consent for a search. Officer [B] sought and received a search warrant by telephone. The officers searched the apartment and discovered methamphetamine. Schultz was charged.
Schultz sought to suppress the methamphetamine, arguing that the officers were not authorized to be in the apartment when they saw the evidence used to justify the search warrant. The trial court concluded that the officers were properly in the apartment on the ground that they needed to talk to the occupants to ensure their safety. The trial court also concluded that “neither [Robertson nor Schultz] told [the officers] to leave and that [Schultz] initially acquiesced to their entry, stepping back and opening the door further, and at no time told or asked them to leave.” The trial court denied Schultz’s motion to suppress, and Schultz was convicted after a trial on stipulated facts. The Court of Appeals affirmed.
ISSUES AND RULINGS: 1) Where officers did not request consent to enter Schultz’s residence, was Schultz’s acquiescence to the officers’ entry consent? (ANSWER: No, declare five justices; the other four justices do not address the merits of the consent issue); 2) Was the officers’ entry into Schultz’s residence justified by the emergency aid exception to the search warrant requirement? (ANSWER: No, rules a 5-4 majority)
Result: Reversal of Clallam County Superior Court conviction of Patricia Sue Schultz for possession of illegal drugs.
May 15, 2011, 5:28 amcboldt says:
– even if an entry is made and it turns out later the courts rule it was unlawful (for example, rule it wasn’t really exigent enough , etc.) it is STILL unlawful to resist. redress is in court, NOT at the scene. –
May 15, 2011, 9:27 amDo you have a Washington state case or statute that supports that proposition? There will have to have been some resistance offered, in order for the case to read on the use of resistance, and the case you offered contains no offer of resistance.
OrenWithAnE says:
Because there are not at least a few dozen folks in this thread alone that have come to the opposite conclusion you have?
Not every warrantless search is unreasonable (see, e.g. Terry).
May 15, 2011, 11:53 amNot every search with a warrant is reasonable (see, e.g. Franks).
Owen H. says:
Seems to me to that the entry was legal to begin with. In any case, how many people are actually qualified and able to determine whether or not the police have the authority to enter against your wishes? In every single case, with 100% accuracy? I mean, if you are going to make assault legal, don’t you have to be right, 100%? No, it seems to me that supporters of resisting want the right o ignore the law when it isn’t convenient. Being confrontational is almost never going to be the right answer when dealing with police.
No. If the police make a mistake, the venue to deal with it is in the courts. What happens if the next guy to resist an “illegal” entry shoots the cop, knowing full well he is a cop, and then the entry is found legal? Can he defend himself because he thought it wasn’t? And exactly what do you think all his cop buddies are going to do in the meantime, while the homeowner is “protecting” his rights?
May 15, 2011, 6:21 pmEric Rasmusen says:
Maybe I don’t know it as a legal term of art— but then you ought to tell me!
What the Indiana Statute I quoted above says is that the English common law, at least from before a certain time, is Indiana law too. In that case, I should think Indiana judges are supposed to follow it as much as they follow any of their own precedents, even if they are not “bound” to follow it. In fact, they are more strongly supposed to follow it than to follow their own precedents, since the rule that the old English precedents should be followed comes as a statute, which takes precedence over the common law.
May 15, 2011, 9:15 pmGardenSERF says:
As someone who has spent many years in IN, this entire situation has raised many questions which I posed on my blog today.
I doubt the judges will answer those questions and will just demand I kiss the ring instead.
May 15, 2011, 9:42 pmOrin Kerr says:
Eric,
I don’t know who is a lawyer here, and in my experience the non-lawyers get a little snippy if you suggest that they may be off because they don’t understand a particular legal issue. But in general, to be “bound” by a precedent means to have to follow its rule.
In contrast, the Indiana legislature’s formal adoption of the English common law — which I believe every state but Louisiana has done — merely indicates that the common law is the basis from which the common law subjects are to be interpreted. It does not mean that common law rules are binding in Indiana courts.
May 15, 2011, 10:30 pm“The Lair of the Wolf is his refuge, and where he has made him his home, Not even the Head Wolf may enter, not even the Council may come.” | People v. State says:
[...] liberty over physical security of the officers.” But as a commenter at the Volokh Conspiracy trenchantly observes: “There is a reason why officer safety is not included in the Bill of Rights, and that is [...]
May 15, 2011, 11:45 pmRaoul says:
I didn’t say it was wise or conducive to long life, but every citizen has right to repel the forcible and illegal invasion of their home. The fact that the illegal invader has a GED, 8 weeks of academy training and a blue suit doesn’t change that.
May 16, 2011, 12:06 amOrenWithAnE says:
The question is whether they are the competent authority to decide the legality in the brief windows of time in which they must react. In fact, since the legality turns on what the officers entering the home reasonable believed at the time, they don’t even have the relevant facts on which to base a conclusion. That is, even knowing all the relevant doctrine and having sufficient time, it’s categorically impossible to decide on the legality of entry without an inquiry into what the police knew and when they knew it.
Consider a routine mis-identification case. A bloodied citizen waves down a police officer to say he and others were being brutally assaulted and points towards a house down the street. Either he or the officers are mistaken as to which house it was and the police break down the door of the wrong house. The entry is unquestionably legal under the exigent circumstances doctrine and yet the homeowner could not possibly know this.
This demonstrates the problem with importing a legal question about the entry into a non-legal setting such as the homeowner’s decision to resist by force. Even if he had sufficient time to make the decision (which he probably won’t) or sufficient training to understand the appropriate doctrine to apply (which he probably doesn’t), the sort of inquiry required to assess whether the entry was legal is not one he could undertake.
May 16, 2011, 12:46 amReaderY says:
It’s one thing for a police officer who makes a mistake to risk getting sued, quite another to risk getting shot at.
The whole point of the rule of law is that people have to resort to the courts to address their grievances, particularly their grievances over property. They can’t simply take things out on each other.
A renegade police officer engaged in out and out criminality would be a different case. But a defective warrant, a dispute over whether evidence was in plain view, and all the other reasons why police officers might make honest mistakes should not expose them to assualt.
May 16, 2011, 1:49 amScott says:
A police officer who mistakenly enters someones home has exposed him or her self to exactly that possible outcome. If they don’t like it, either don’t cross the threshold or just get the damn warrant already.
May 16, 2011, 5:19 amOwen H. says:
And yet again, there are many circumstances where a warrant is not required, nor should be. If he believes he has probable cause (whether or not he is correct), how do you know he does not?
May 16, 2011, 7:04 amScott says:
He’s going to have to either take the risk or just get the damn warrant already. There are some things more important than making busting down doors safe for our jackbooted “protectors”
May 16, 2011, 8:43 amOwen H. says:
Why are you ignoring the fact that many situations do not require a warrant?
“Take the risk”? And what do you think the result will be if he in fact has probable cause to enter, and you resisted? If you shot and killed him? And what if he infect has a warrant, but you “know” it’s bogus, based on false information. Going to shoot it out?
I’m seeing a whole lot of internet Rambos that think there would be no consequences, think that there could possibly be a good outcome for themselves.
May 16, 2011, 9:08 amQuote of the Day | Snowflakes in Hell says:
[...] Via Volokh commentary on the decision by the Indiana Supreme Court to eliminate the right to resist unlawful entry of a government agent. This quote is attributed to William Pitt, Earl of Chatham, after whom the city if Pittsburgh is named: The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement! [...]
May 16, 2011, 10:07 amEric Rasmusen says:
THanks for the clarification on the common law, Oren.
It sounds like that means the adoption statutes are vacuous, since the mention of old English common law doesn’t constrain judges at all. Is that right? I can see how judges would like to interpret the statute to be empty.
May 16, 2011, 11:03 amGBED says:
If this country was Somalia I would agree with you. Thank God this is America where, as one commenter has already stated, the ‘Rule of Law’ prevails.
May 16, 2011, 11:13 amOrenWithAnE says:
So in the case of a bloodied person running out of a house claiming that the person inside assaulted them and is currently assaulting others, you think an officer should phone in a warrant (assuming it’s not a weekend or holiday) before intervening to protect innocent life?
What’s more, what penalties do you think should befall the homeowner who reasonably but incorrectly believes that the invasion is illegal and resists? Or the officer who enters legally in such a case and responds with proportionate force to that homeowner?
May 16, 2011, 12:29 pmRaoul says:
Yes, there are instances when police may and should force their way into a residence without a warrant. Most police will only do so when justified. Most citizens will stand aside even if they know the police have the wrong address, even if they believe the entry to be illegal.
There are also instances of police knowingly and illegally forcing entry into homes, including doing so for the purpose of committing crime or otherwise depriving a citizen of their rights.
In the aftermath of hurricane Katrina, police in New Orleans went door to door demanding citizens surrender their legally owned firearms. After confiscating the firearms, the police left. Left the citizens defenseless against looting, assault, rape and murder by the next gang of armed thugs to come to their front door.
In such an instance the citizen has every right to tell the police to go to hell and use whatever force needed, including deadly force, to keep the police out of their home.
May 16, 2011, 12:56 pmOrenWithAnE says:
And hope that they both (1) can outgun the police and (2) a subsequent force will not convict them of murder because they incorrectly parsed the situation or were not cognizant of some important fact that made the entry legal?
That’s a tall order. The post-Katrina actions were unjustifiable (and the city and State are now bound by a consent decree forbidding a repeat in perpetuity) but getting in a battle with the vest is liable to make things worse a lot faster than it makes it better.
And the sort of inquiry needed to distinguish the two is legally challenging, fact-intensive and not conducive to being made by the homeowner in a split-second without knowing the proper facts.
It was never the case that I said police don’t illegally enter homes, only that homeowners are particularly poorly suited to figuring out which entries are legal and which aren’t.
May 16, 2011, 1:09 pmTJ says:
The right to resist illegal arrests and home invasions has been around for a long time. It has not resulted in the society degenerating into violent chaos so far. If it was going to, I think it would have done so already. The reason for a right to resist arrest is not encourage violence – it is protect the rights of the innocent.
Without a right to resist arrest the police can push anyone one around. If you refuse to speak to a police officer, if you refuse to open door for a police officer who is breaking the law, if you shut the door on a police officer, if you verbally protest the illegal actions of a police officer, if you refuse consent to a search, if you verbally protest your innocence, if you argue with a police officer
- or if a police officer alleges that you did any of this things you can potentially be punished as a criminal, even if you are 100% innocent of any crime and the police officer(s) were acting completely illegally. It will be just your word vs the police officer(s). Who do you think will win in court? If there is more than one officer, do you think you will stand a chance in court?
Murders, bank robbers, and mobsters are not going to refrain from shooting police officers because of what the Indian Supreme Court says. Innocent people whose homes are broken into in the middle of the night, they are not likely to look up the latest court rulings before they grab their revolver. Taking away the right to resist wrongful arrests and home invasions is not likely to save a single life.
Does anyone think that Jose Guerena should be considered a criminal?
http://pajamasmedia.com/tatler/2011/05/14/the-indiana-supreme-court-decision-makes-less-sense-than-before/
If a police officer harasses a teenager (who is dressed the wrong way or something) without any real evidence of a crime and then the teenager tries to run away, should she be be punished as a criminal even if she can prove that it was an illegal arrest? What if the teenager does not run away, but the police officer claims that they tried to escape or resist, should the teenager be punished as a criminal?
So I don’t see what excuse the Indian Supreme Court has to ignore the actual law and replace it with their own political beliefs. (and they did so retroactively)
The Indian Supreme Court just made it more difficult for individuals to defend their rights in court.
The police are not always peaceful, they do not always respect peoples rights and the are not always honest. Prosecutors and judges are not always honest and they do not always respect the law. The majority on the Indian Supreme Court demonstrated contempt for law and for the rule of law.
May 16, 2011, 1:12 pmA good read: Indiana SC finds no right to defend property from unlawful enterance. | Cactus Thorns says:
[...] SC finds no right to defend property from unlawful enterance. May 16, 2011By Dan OBrienI like thisThe Volokh Conspiracy » No Right to Assault Police Officer Entering Home Even if Entrance is Unlawf… The decision is Barnes v. State, and the Indiana Supreme Court divided [...]
May 16, 2011, 1:29 pmADF Alliance Alert » IN Supreme Court: No right to resist illegal cop entry into home says:
[...] NWI.com: 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. | Orin Kerr provides more information on the ruling at the Volokh Conspiracy. [...]
May 16, 2011, 2:03 pmRaoul says:
That consent decree resulted from a lawsuit filed by the NRA, not because any of the genius lawyers at the U.S. Department of Justice give a rat’s ass about the rights of American citizens.
Imagine if the suit had been filed on behalf of a citizen who had resisted the demand they surrender their guns and the case had been heard by the “Missouri Plan” elitists of the Indiana Supreme Court.
May 16, 2011, 2:16 pmGBED says:
Well, I hate to be the one to tell you this but, the rule of law is what a judge(s) say it is.
May 16, 2011, 2:46 pmTJ says:
I am fully aware that this is how many judges feel this way. Some judges are just thugs with robes and law degrees. When judges act like thugs deserve the contempt of the people.
May 16, 2011, 3:27 pmOrenWithAnE says:
I think it depends heavily on facts that we do not yet know. As it stands, I think it’s ridiculous to come to any conclusions before we know the whole story.
The answer might depend, for instance, on whether the deputies involved in his shooting possessed a valid search warrant, whether the affiants for that warrant recklessly or deliberately mislead the magistrate, whether the decedent threatened officers, etc….
I mean, in some fact patterns, it sounds like you are advocating the right to resist with deadly force an officer lawfully entering a residence. Is that the case?
May 16, 2011, 4:42 pmScott says:
I’m ignoring the fact that there are situations that do not require a warrant because the fourth amendment does so. Forcibly entering a persons home without their permission is not safe and should not BE safe. Just get the damned warrant already if you want to safely search someones home.
The likely outcome for the householder of resisting is entirely irrelevant and I’m quite sure that none of the “internet Rambos” you’re so contemptuous of believe that the outcome is likely to be good. This does not in any way change the fact that the use of reasonable force in resisting unlawful actions by the police ought not in itself be illegal.
Your “concern” for the person whose property and person is violated by lawbreaking police officers is touching, if a little unconvincing, given your apparent desire to add to the negative consequences after the fact by making it possible to prosecute them for resisting unlawful actions of the police.
May 16, 2011, 5:25 pmOwen H. says:
You are, in fact, wrong. There are circumstances (see above example) where police do not need a warrant to enter a home.
I call them that because the outcome is almost certainly not going to be good, and they erroneously think that somehow after shooting a cop the rest are just going to go away and say, “oops, our bad”. That ain’t happening.
the place to fight police that violate your rights, unless they are directly and immediately threatening your life improperly, is in the courts. very few such cases actually involve evil police bent on using their authority to attack or kill you and your family.
I can resist verbally all I want. “Officer, I do not consent to you entering my home.” “Officer, I do not consent to any searches.” But if they press it, if they believe they have the authority to do so, physical resistance is ultimately futile anyway. And never forget, you might be wrong about whether he is acting within his authority. If your verbal refusals aren’t stopping him, he might be right.
May 16, 2011, 5:40 pmOwen H. says:
I’d also like to hear from anyone who thinks it should be ok to resist. What if you’re wrong? No one has mentioned that yet.
May 16, 2011, 5:41 pmScott says:
How about a quote from the fourth amendment stating where the fourth amendment does not ignore these circumstances.
Time to produce another quote: who has said that they think this is a likely outcome? You’re burning strawmen here.
When police act unlawfully and a citizen resists using reasonable force, adding to the initial lawless act by punishing the citizen for resisting the lawless act of the police is absurd. Providing police with legal protection for lawlessness is itself lawless.
May 16, 2011, 5:54 pmScott says:
The same thing that happens when someone uses unreasonable force against someone who does not wear a uniform and badge.
May 16, 2011, 5:58 pmOwen H. says:
Can you cite a case that states that a warrant is always required? If they are driving by and hear gunshots and screaming from inside the house, they need a warrant to enter?
I can’t imagine why they would do so if they didn’t think it would go better than fighting it out in court. If they don’t, then they are also stupid.
And if the police are in fact right? What then?
In any case, I’m not providing them with protection. The place to go after them is in the courts.
May 16, 2011, 6:01 pmScott says:
So it’s not to be found in the text? I could have sworn that when I stated that the fourth amendment ignores it, you said I was wrong. Wait! that’s exactly what you did say.
If a police officer thinks that entering that house is going to be safe, more power to him, I say.
So we’re prosecuting people every time they do something that is unlikely to have a good outcome now? this is “good public policy”?
The same thing that happens when someone uses unreasonable force against someone who does not wear a uniform and badge. Relieving courts of the responsibility to determine whether or not this is in fact the case accomplishes nothing worthwhile and protects lawless police from the use of reasonable force in self defense.
You want, after the fact, to prosecute people who use reasonable force in self defense because the person they used that force on possesses a badge. If being able to prosecute police for lawless actions after the fact is sufficient protection for we lowly serfs, how is the same thing not protection for our lords and masters?
May 16, 2011, 6:22 pmOwen H. says:
You know, it seems to me that the text doesn’t say that a warrant is the only way that a home can legally be entered without permission. Can you cite otherwise? Can you show me the precedents that say police may not enter under any circumstances without a warrant?
I didn’t askif it was safe, I asked if it was legal. Are you saying that if an officer does enter under those circumstances without the owner’s permission, the owner has a right to resist?
I’m not “relieving” the courts of this responsibility, you are.
Please, RFC.
Try again. You are the one that wants the right to escalate the force involved. You do not have the right to assault a police officer in the performance of his duties, even if he is making a mistake. Are you next going to argue that if a cop wants to pull me over but I know I haven’t done anything wrong, I have the right to ignore him?
May 16, 2011, 6:41 pmtwency says:
Be careful, the Indiana Supreme Court said that “a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. ”
May 16, 2011, 7:03 pmSo you better not resist even verbally. A right to resistance, after all, is against public policy.
r_r says:
”
I’d also like to hear from anyone who thinks it should be ok to resist. What if you’re wrong? No one has mentioned that yet. (Quote)”
What if you’re dreaming while sleepwalking, and in reality you are shooting a police officer right now?
The “What if you are wrong” defense in it’s implication of “no self-defense allowed” leads swiftly to the conclusion that police officers should be outlawed, rendering the matter of self-defense against police officers moot.
As a simple answer to the question– if it turns out the police officers was there lawfully, you lose your case and face full legal consequences.
May 16, 2011, 9:21 pmOrenWithAnE says:
The 4A protects only against unreasonable searches, not warrantless ones.
There are trivial cases where a warrantless search of a home is not merely reasonable but where failure to do so would be tantamount to dereliction of duty on the part of the police.
The 4A requires reasonableness. If entry is reasonable, it complies with the 4A.
If the police hear screams from a house that indicate that a person is currently being murdered, it is hardly unreasonable for them to enter immediately. If they didn’t intervene, they would be depriving the victim of protection of the law and his life.
The problem is that you might be wrong for reasons that you couldn’t possibly have known at the time (i.e. that the police had a warrant, that you had an arrest warrant issued, …).
So it makes no sense to face consequences based on factors that are both beyond your knowledge and beyond your control — it’s a crapshoot.
May 16, 2011, 9:39 pmr_r says:
“So it makes no sense to face consequences based on factors that are both beyond your knowledge and beyond your control — it’s a crapshoot.”
May 16, 2011, 9:50 pmOr you could just ask “What is your warrant/ probable cause?” when they knock. If they don’t slip a copy of the warrant under the door or clearly describe their probable cause once this rule is established, they must be acting unlawfully.
GBED says:
Sir, in a great majority of the cases, it happens just like you wrote. The officer knocks on the door, the resident answers, and the officer responds; any town police department, I or we have a warrant to search the promises or to arrest John Doe. The more progressive departments will even say, I or we have a warrant to search 123 any street, apartment 2 (if applicable), any town, USA. That way, if the police are at the wrong address, the resident will say so and the police will have time to consider their situation. Of course, depending on what they are searching, they will not stand outside debating you for an extended time.
No-Knock warrants, at least in Massachusetts, require a higher level of scrutiny by the issuing court. The police must specify in detail, why a No-Knock warrant is necessary. The magistrate is required to make a specific finding that a No-Knock warrant is necessary.
May 16, 2011, 10:50 pmOrenWithAnE says:
An officer with exigent circumstances (let’s say he reasonably believes that a person is being held inside against his will and may be killed at any moment) is not required to answer the kidnapper’s questions before knocking down the door.
An officer with a warrant is not require to present it to the homeowner for inspection before execution (they do have a leave a copy afterwards). Even the most strict knock-and-announce rules entitle him to first secure the premises.
May 16, 2011, 11:01 pmOrenWithAnE says:
GBED is also correct about the practice, whereas I had focused on the bare-minimum legal requirements.
May 16, 2011, 11:20 pmScott says:
That’s not a safe course of action, whether the officers duty requires it of him or not. Prosecuting people for resisting lawless acts by police officers makes entering that home not one whit safer.
That’s a reason not to resist lawless acts being committed by the police. It’s not a reason to prosecute and particularly not a reason to convict someone who resisted lawless acts by the police.
If the officer is acting lawlessly, using reasonable force in self defense is not assault.
May 17, 2011, 5:25 amTPL says:
I think it is highly naive to assert that a person should jettison their Fourth Amendment rights when an illegal entry by a police officer occurs, then expect there to be some recourse in the courts following the fact. Police almost always get benefit of the doubt in courts, and their words will highly likely be taken over the words of a victim or even the truth. The only time cops don’t walk is in the most blatant and reprehensible cases (e.g. the bar beating in Chicago).
If Kerr’s assertion is correct, then why the need for the historical common law? After all, the resident of the “ruined tenement” who had the King of England barge into his home can simply expect that his objections will be fairly heard by the King of England post facto.
An implacable defense against the “good intentions” of the authorities type of argument is precisely why the Bill of Rights was implemented in the first place, over the objections of the Federalists.
While I agree the particular details of this case are not completely black and white with respect to the Fourth Amendment, the scope and repercussions of the decision certainly are. The majority decision in this case was needlessly broad, smacks of legal opportunism, and is an abomination under the Fourth Amendment to the U.S. Constitution.
May 17, 2011, 7:25 amOrenWithAnE says:
I didn’t cite it by safety, I cited it because you continue to insist that the 4A requires a warrant in all cases, which it doesn’t. In that scenario, entry is reasonable (quite so) and hence complies with the 4A.
[ And you are wrong, it's rather safe -- body armor and training plus a few dozen backup units arriving within minutes makes for a very stacked fight. Not 100%, mind you, but not all that dangerous for an individual event. ]
It does, in fact, because it discourages the homeowner from guessing on the lawfulness of entry when he’s poorly suited (for the 3 reasons listed above) to making that determination.
It doesn’t stand to reason that two individuals should be treated differently based on facts beyond their knowledge and control. If the homeowner cannot distinguish unlawful entry from lawful entry then it follows that the act of resisting lawful entry is equivalent to the act of resisting and unlawful entry.
Adam and Bob are both in their houses when the cops kick in the door, both of them have the same information (none) and take the same action (resisting). In Adam’s case, he has a bench warrant he didn’t know about but Bob didn’t (but neither Adam nor Bob knew about whether they had a warrant). What sense does it make to prosecute Bob but not Adam — they both committed what was, from their point of view, the same act.
May 17, 2011, 10:18 amOwen H. says:
If that is the case, and they have no expectation that their rights will ultimately be upheld by the courts, then what do you think those courts are going to do if they assault the officers?
May 17, 2011, 11:50 amDid the Indiana Supreme Court just give carte blanche to dress up like SWAT and go around home invading? | Pithy Title Goes Here says:
[...] what I understand of the case itself, it looks like in this specific instance the police were okay to enter the man’s house and [...]
May 17, 2011, 5:04 pmTJ says:
Related News:
And in Indiana, if you resist (or the police just say you resisted), you can be prosecuted (or “legally” killed at the scene).
“We heard the toilet flush so we entered. It looked like he/she was reaching for something so we shot. All my buddies on the force say the same thing.”
May 17, 2011, 5:37 pmGBED says:
What point are you trying to make [that there are rouge cops out there]? Of course there are. But, rouge cops are infinitesimal in relation to the total number of law enforcement officers in the United States. You can find a rouge element in any profession.
May 17, 2011, 6:28 pmRaoul says:
http://www.mikechurch.com/Today-s-Lead-Story/in-sheriff-if-we-need-to-conduct-random-house-to-house-searches-we-will.html
ROWN POINT, Ind. – According to Newton County Sheriff, Don Hartman Sr., random house to house searches are now possible and could be helpful following the Barnes v. STATE of INDIANA Supreme Court ruling issued on May 12th, 2011. When asked three separate times due to the astounding callousness as it relates to trampling the inherent natural rights of Americans, he emphatically indicated that he would use random house to house checks, adding he felt people will welcome random searches if it means capturing a criminal.
May 17, 2011, 7:58 pmCarl N. Brown says:
I don’t worry about the rouge cops, its the rogue cops I worry about, and the Bull Connors and the Frank Rizzos (I’m here to make Attilla the Hun look like a fag) who will abuse these powers.
Newton County Sheriff, Don Hartman Sr., needs a reading comprehension test such as the one from ABT. The Indiana court saying that the common law rule that resistence to an illegal entry no longer applies to Indiana, does not allow illegal entry: it disallows resistence to illegal entry and recommends taking the case to court.
May 17, 2011, 11:18 pmCarl N. Brown says:
The wife according to the ruling did not explicitly ask the officers to come in. (She did tell Barnes to get the rest of his stuff.) Barnes told the officers they were not needed. Barnes initially resisted by blocking the door and denying entry. He then shoved the officer who insisted on entering, and was tased and put in a choke hold. Nothing in there about him resisting by shooting anyone. He blocked the door, refused permission to enter and his wife did not give explicit permission to enter either, according to the statement of facts in the ruling, and he shoved the officer who insisted on entering.
There oughta be rule that you read a court ruling before commenting on it.
May 17, 2011, 11:33 pmCarl N. Brown says:
The concept of lawful resistence to unlawful use of police force has been in the common law and in some legislation.
If we argoing to do away with the common law right to use reasonable force to resist unlawful entry, why not just go ahead and apply the Federal Supremacy clause to the state and local police as well?
While Clifton 1977 was before Garner 1985, Idaho v Horiuchi 2001 was after, yet treated Clifton v Cox 1977 as valid exemption for federal police, as though Garner was not binding on the federales.
May 18, 2011, 12:04 amTJ says:
http://www.koat.com/news/27922147/detail.html
May 18, 2011, 2:14 amCarl N. Brown says:
Does any one recall joint letters signed by coalitions of diverse groups, including the NRA and ACLU, to President William J. Clinton, January 10, 1994, and to Henry J. Hyde, Chairman, and John Conyers, Jr., Ranking Member, of the House Committee on the Judiciary, October 24, 1995, on many of the same issues in this discussion thread?
May 18, 2011, 7:06 amGBED says:
I just finish reading Barnes v. State again and I didn’t see anywhere in that case where the court authorized random house to house searches.
The Texas law is totally reasonable and stating the obvious. Police officers should never be allowed to use excessive or unreasonable physical force to effectuate an arrest or to search. That issue was not at issue in Barnes v. State. You should read the Texas statue very carefully.
TJ, I am not familiar with the Patriot Act or Foreign Intelligence Surveillance Act (FISA). But I would say that if a Mexican drug cartel is linked to the drug operation the FEDS are probably permitted to conduct these searches pursuant to FISA. That would be my guess.
May 18, 2011, 8:02 amCarl N. Brown says:
The issue in Barnes v Indiana is reasonable resistence to unlawful entry.
The Texas law illustrates the related but different issue of lawful resistence to unlawful excessive force.
Barnes blocked the door and “Barnes told the officers that they could not enter”. The court ruling points out that “Mary did not explicitly invite the officers in”, but told her husband to “just let them in”. Then it became a push-shove match between Barnes and Reed.
At one point it could have been reasonable resistence to an unlawful entry (by physically blocking the door and verbally denying entrance). At that point, would Reed attempting to enter against the will of the husband and without an explicit invite from the wife constitute excessive force justifying resistence?
May 18, 2011, 9:17 amScott says:
Adam and Bob are both in their houses when the cops kick in the door, both of them have the same information (none) and take the same action (resisting). In Adam’s case, he has a bench warrant he didn’t know about but Bob didn’t (but neither Adam nor Bob knew about whether they had a warrant). What sense does it make to prosecute Bob but not Adam — they both committed what was, from their point of view, the same act.
May 18, 2011, 4:56 pmScott says:
Jim is in his house when persons credibly disguised as cops kick in the door. He has the same information as Adam and Bob and using the underlying premise here, we’re required to prosecute him if he resists. That’s an absurd enough outcome that the underlying principle ought to be rejected in its entirety.
May 18, 2011, 5:01 pmtheBuckWheat says:
Why is nobody talking about impeachment of the judges who voted for this outrage?
May 20, 2011, 12:47 pmGBED says:
So, if the bums don’t do what you want, throw them out, is that it?
May 20, 2011, 1:25 pmTJ says:
May 5, 2011: No federal charges were filed against three plainclothes anti-gun task force officers who beat the tar out of an innocent 18 year old honor student near his home. The officers were reinstated after being on paid leave during the investigation.
http://www.pittsburghlive.com/x/pittsburghtrib/news/s_735421.html
http://www.post-gazette.com/pg/10063/1040266-100.stm
http://www.pittsburghcitypaper.ws/gyrobase/Content?oid=oid%3A83636
http://www.justice.gov/opa/pr/2011/May/11-crt-568.html
http://www.forbes.com/feeds/ap/2011/05/05/general-us-arts-student-beaten_8452260.html
http://www.pittsburghlive.com/x/pittsburghtrib/news/pittsburgh/s_735520.html
http://www.pittsburghlive.com/x/pittsburghtrib/news/pittsburgh/s_670040.html
May 24, 2011, 1:42 amTJ says:
May 19, 2011: An innocent woman is charged with battery on a law enforcement officer and resisting arrest after being attacked by a police officer. Luckily for her, the incident was captured on video and the charges against her were dismissed.
http://www.clickorlando.com/news/27952314/detail.html
http://www.clickorlando.com/video/27960309/index.html
http://articles.orlandosentinel.com/2011-05-21/news/os-orlando-police-brutality-allegatio20110520_1_orlando-police-orlando-officer-arrest
http://www.wftv.com/news/27968788/detail.html
May 24, 2011, 2:02 amEric Rasmusen says:
Good examples, TJ. Of course, what many of those commenting here are saying is that the woman whose teeth were broken by the policeman should *not* have been released after the video proved that he was acting with excessive force. Rather, they say that his violence in breaking her teeth did not justify what the policeman said she did to him: “Wareham, with her right hand, reached across her body and smacked me several times in my right hand and arm.” Rather, they say that the woman should be sent to jail for her violent behavior, as a warning to other women who might smack policemen and thus foster violence in our peaceful society.
June 6, 2011, 10:28 pmEric Rasmusen says:
This thread’s activity has stopped, but in case anybody is interested in the case and comes here via Google:
I’m helping organize a super-quick amicus brief for a rehearing of Barnes v. Indiana, the Indiana Supreme Court case last month on whether it should be criminal to push a police officer attempting an illegal entry.
The issue is whether there is in Indiana a common-law right to resist illegal police entry into one’s home (as opposed to being guilty of a crime if you push a policeman against a wall when he tried to invade your home illegally— the specific action at issue in Barnes). The Indiana Supreme Court has by 3-2 decided that there is no such right. This has provoked demonstrations and a move by the legislature’s majority to statutorily overrule the Court. The Defense has moved to rehear the case, and the State (Republican) seems to have reversed its position. The Court, like the State, does not seem to have thought through what it has done, so there is hope it may reverse itself. The politics are strange; this is not a left vs. right issue.
I’d like to submit an amicus brief by the deadline of June 13. I want to submit this as a brief of scholars. A separate amicus brief on the issue of statutory justification of self-defense is in preparation, which has lots of state legislators who are signing on.
I’m looking for (a) profs who might be willing to sign on, and (b) anyone who might give comments on the brief. Below, I give the main argument. The draft (preliminary,http://rasmusen.org/special/barnes/Barnes-lawprofs-amicus.doc ) and other relevant documents may be found at http://rasmusen.org/special/barnes/ . What is most important here is the persuasiveness of the brief itself, not how impressive its supporters are. I’m sure I’ll get enough supporters to make it credible. What I’d like you to do is to take a look at the summary below and tell me whether there is some chance you might be willing to sign on. If so, then I’ll send you the final version in a few days, and you can decide whether you actually do want to sign on. I won’t put your name on unless you reply to my later email with the final version. If you haven any comments, even if you *don’t* want to sign on, please tell me. This might also become part of an academic article some day, since I do have plans to write something on self help.
I am particularly interested in (a) comments about whether the common law BEFORE 1607 (important for Indiana reasons) granted citizens the freedom to defend their homes against illegal state action, and (b) comments on whether civil actions against the police and the state are reliable remedies for illegal police behavior.
Yours truly,
Eric
–
Eric Rasmusen
Dan R. and Catherine M.Dalton Professor
Dept. of Business Economics and Public Policy
Kelley School of Business, Indiana University
BU 438, 1309 East Tenth Street, Bloomington, Indiana 47405
Erasmuse@indiana.edu. Http://www.rasmusen.org.
Home: (812) 331-0012. Iphone: 812-327-6695.
Office: (812) 855-9219. Fax:(812) 855-3354.
SUMMARY:
Mr. Barnes was convicted of the Class A misdemeanors of battery on a law enforcement officer and resisting law enforcement, as well as another charge not relevant here. Barnes argues that the trial court’s failure to instruct the jury that there exists a right to reasonably resist unlawful entry by police officers is reversible error.
The Indiana Supreme Court said, “Now this Court is faced for the first time with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers. We conclude that public policy disfavors any such right.”
This is an important question, and we believe that the Court needs fuller briefing on it than has occurred. We will not treat of the important issue of whether Indiana statutes justify Barnes’s desired jury instruction aside from any common-law right to resistance. Instead, this brief is limited to advising the Court on three other points that we fear may otherwise receive insufficient attention. First, does public policy really disfavor the right to resist unlawful entry? Second, is the Court’s ability to decide the common-law rule on public-policy grounds eliminated by Indiana’s common-law incorporation statute? Third, if the Court does recognize a general right to resist unlawful police action, should an exception be made to criminalize resistance when the police excuse for unlawful behavior is that it is intended to prevent domestic violence?
We will argue that public policy should encourage rather than discourage citizens to resist unlawful police actions, because the consequences to society of police violation of civil rights are worse than the harm to the police from citizen resistance. Not only is punishing citizens for protecting their rights against violation by the state unjust, but the alternative remedy of civil suits for money damages is insufficient deterrence for state oppression. We will argue that the common law has long given citizens the the right to resist illegal state action, and that even if the Court decides that such resistance causes more trouble than harm nowadays, Indiana statutory law forbids the Court to change public policy in this area. And we will argue that although in domestic violence cases the law will often permit the police to act more flexibly than in other situations, when the police do act illegally they should not be able to excuse their actions merely because the context is that of domestic violence.
June 7, 2011, 3:37 pmGBED says:
Second thought, forget it.
June 7, 2011, 4:09 pmUpdate:Indiana Supreme Ct. Ruling on Defending Home Against Illegal Entry by Police | UNCOVERAGE.net says:
[...] brief supporting the petition for rehearing was filed in Barnes v. State, the decision Orin blogged about last month. The brief was also signed by 31 of the 100 Indiana House of Representatives members, but the [...]
June 11, 2011, 1:26 pm