“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,” nwitimes.com reports. “In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry . . . The court’s decision stems from a Vanderburgh County case in which police were called to investigate a husband and wife arguing outside their apartment . . .
When the couple went back inside their apartment, the husband told police they were not needed and blocked the doorway so they could not enter. When an officer entered anyway, the husband shoved the officer against a wall. A second officer then used a stun gun on the husband and arrested him.”
At the risk of re-igniting the aforementioned gun loon thing, the ruling means an Indiana citizen can’t protect his or her home against agents of the government by force of arms. At all. Ever. Not that you would . . .
Our man Ralph has a different take (of course):
This is the trend in all states. Many states have removed the common-law citizen’s right to resist unlawful entry by the police. Most have done so by statute, which I believe is the only permissible manner. Representatives are elected to pass laws, courts are not.
Here is the issue that the courts never address, but absolutely must enter into the judges’ thinking: how does anyone know whether the entry is lawful or unlawful without a court hearing or a trial, civil or criminal? A police officer may be within his rights to make entry, or may have exceeded his authority, depending on some very iffy circumstances and tight twists in the law.
In my opinion, in this very case a strong argument could and will be made (in the event of civil litigation) that the officer’s entry was lawful, based on reasonable fear of domestic battery in progress.
Here’s the deal: if presented with an unlawful entry or arrest situation, the citizen should make clear that he or she denies permission to enter but will offer no resistance. There will be time later to hire a good lawyer and sue their fucking eyeballs out. Which to me is better than getting tasered.
Our own Chris Dumm is also a lawyer (in the great state of Washington). And a man of few words. Well, this time:
Many states (like mine) preserve the common-law privilege to resist unlawful police actions, as long as the force used does not rise to the level of an assault. I don’t have time to do a federal or state survey, but it seems that this privilege is only a judicial tradition and is not codified into written statute. What judges decide, they can change their minds about.
Once again I haven’t researched this, but I’m not aware of any jurisdiction that allows knowingly using deadly force against police to resist an unlawful arrest or search. This ruling shows the wussification of Indiana (Connecticut went down this castrated road years ago) but has little impact on 2A issues.
How on earth did they arrive at this conclusion? So does this abolish the need for cops to get a warrant? Correct me if I’m wrong, but this makes it seem as though a cop can enter someone’s home simply because they feel like it and the owner can do nothing to stop them.
4th amendment anybody?
Sure, I’ll take a 4th Amendment. Since I haven’t seen my old one for quite a while.
My understanding is that if the door is open they can go in (or if you open the door). But if the door is closed, they can’t kick it down without probable cause or a warrant. Possible domestic violence may constitute probable cause to enter.??? Anybody else?
The judge definitly got way too word happy with the decison though. In my state you cannot resist an officer even if you belive he/she is making an unlawful arrest unless you are in danger of life or limb.
Why is it that when I read your part regarding the doors that I thought about a vampire and how they can enter your home if the door is open to them?
Vampires and the government, both a bunch of bloodsuckers.
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Whether or not this situation actually followed established legal precedent or procedure, the cop should have told the husband that the wife needed to come to the door for a discussion. Refusal to comply IMHO could have justified the cop entering the apartment for fear of the safety of the wife. If the wife comes to the door and corroborates the husbands story, then Mr. Police Officer tells them to keep it down and departs promptly.
Knee Jerk. Enough said.
Another situation of common sense over riding into an absolute ruling by those entrusted to follow the Constitution. I hope this ruling is contested to the US Supreme Court. It is just a further extension of the thermal imaging used to spy into homes w/o warrants or cause a few years ago. Let’s see, hostile fire at the borders, a government agency allowing illegal weapons to cross said border and rights being revoked…hmm.
I just showed to post to my police officer buddy, and he believes that the officer did the right thing because of the possible domestic violence call.
It was possible, Joe. For me though that is a tad invasive. Me and the wife argue. Who doesn’t? That isn’t just cause for a the PD to invade my home.
I agree with you Buuurr, but I don’t think you can stop any police officer who is intent on entering your home. They will enter no matter what you say and if you try and stop them, they’ll arrest you for obstruction.
No, I agree. I just don’t think you should have to. Seems a little too ‘V for Vendetta’ for me. If you know what I mean.
“… it seems that this privilege is only a judicial tradition and is not codified into written statute. What judges decide, they can change their minds about.”
That’s what is wrong with the law and its application. Judges have no power to alter the common law. They have to apply it to new circumstances, but there is nothing new about a gendarme entering a home against resistance.
If this is not corrected — we are headed to dark places …
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.–William Pitt
So now the courts have decided the 4th Amendment is a nullity.
Perhaps tomorrow they will determine the 21st Amendment repealing prohibition is also without force. The police will casually break into your home and arrest you while you sit in front of your TV in your underwear, sipping a cocktail.
Double plus good.
Private property rights and citizen sovereignty is just so untidy and 18th Century. An ongoing Constitutional Convention of unelected judges is much more rational and Progressive than representative government, with its endless debates and feckless compromises.
All power to the Supreme Soviet of black-robed demigods!
The judge’s ruling went beyond the circumstances in the case. To say that an officer can enter for no reason at all means they can just walk up to a residence at random and enter with no basis. Perhaps he means the entry may not be resisted with violence of any kind but, of course, any evidence beyond that point would be jeopardized.
Rights are not given, created, or delegated by the state. That means they can not be removed by the state, whether by courts or by the legislature. Public servants do NOT have the power to authorize themselves to commit crimes against their public masters. Your butler can’t give himself permission to steal your silverware, and your legislature can’t give themselves permission to rob you and to deny you your right of self defense.
They can, practically speaking, lie and commit these crimes, but that’s only just cause to indict, arrest, try, convict, and sentence these official criminals for their crimes.
In a few years when our foreign policy becomes domestic policy, and the para military and or secret police are entering your home illegally with the intent of torturing and killing you after raping your wife in front of you – will Ralph give the same advice? And even now – if they are planning on illegally seizing your property, your liberty, and everything you have and could ever have – is that wise advice? Shall we all play by the rigged rules of the criminals in power?
A Critic, I didn’t view this as such a case. To me it was a close call. An agitated man, a frightened woman. People have died in less-volatile situations.
However, I once made a pretty good living by “suing their eyeballs out,” when the calls weren’t so close. I hurt them where governments don’t like to be hurt — in their wallets and their reputations. Once you hold a government’s actions up for critical examination, it loses all pretenses of occupying the moral high ground — as government has with you. And with me.
I think folks here are overreacting just a tad. The 4th amendment, like the 2nd, is not absolute.
Think about it, do you want a situation where the cops can hear someone being assaulted or murdered in their home but refuse to kick in the door because they don’t have a warrant? “Exigent circumstances” have long been recognized as a justification for not getting a warrant.
Note also that the 4th amendment does not say a warrant is required for any and every search. The 4th amendment prohibits “unreasonable search and seizure” and it then states that a warrant must be based on probable cause. But the 4th amendment does not define “unreasonable” and that is left up to the courts.
Just a historic note since the opening line of the article seems to muddle up two important terms (a mistake not made by RF, but the author RF quotes)–the Common Law is based upon Anglo-Saxon tradition, and existed well before 1215. 1215, of course, is the year the Magna Carta was forced upon King John. Common Law and the Magna Carta ran parallel to each other: the great charter was Norman and applied only to freemen (mostly nobility at that time). Common Law applied to the third estate (mostly Anglo-Saxons). The third estate had no expectation of domestic security; some medieval jurists argued that all the third estate “owned” was their lords.
The quotation by Pitt is a wonderful bit of rhetoric, but it did not reflect any reality. He was in the minority in this opinion, from what I remember of my 18th century British history classes.
Again, I just want to reiterate that this is a tempest in a teapot.
What the court is saying, in a nutshell, is that if you have an issue with the legality of a search, take it to court. Don’t duke it out with the cops on the street because that doesn’t help anybody.
Take it to court. You’ll have your say, the cops will have theirs, and the judge will rule. If the law is on your side, any fruits of the search will be suppressed. You might even be able to sue for damages.
This is no different from an arrest. If a cop is trying to arrest you and you believe he does not have probable cause to do so, you are not allowed to resist him with force. Instead, you take it to court.
I believe this is paving the way for future Marshall Law and citizen resistance! Beware and stay informed!
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