Last May, the Indiana State Supreme Court [above] ruled that citizens living in the Hoosier state don’t have the right to resist law enforcement officers entering their home—even when the police don’t have a warrant. Yes, you read that correctly. How, you may ask, is this ruling in compliance with the 4th Amendment that protects citizens from unreasonable search and seizure? As Justice Steven David wrote for the majority . . .

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

It seems the court leaned heavily in favor of minimizing any potential violence against the police while illegally they break down your door.

“It’s not surprising that they would say there’s no right to beat the hell out of the officer,” [Valparaiso Professor Ivan] Bodensteiner said. “(The court is saying) we would rather opt on the side of saying if the police act wrongfully in entering your house your remedy is under law, to bring a civil action against the officer.”

You apparently have to be a judge to see the obviousness in this case. In any case, the Indiana House is now considering a law that would right this unjustly tipped ship. From indystar.com:

The measure — Senate Bill 1 — is aimed at overturning a controversial Indiana Supreme Court decision from last May. That 3-2 decision said people have no right to resist if police officers illegally enter their home.

The House sponsor of the bill, Rep. Jud McMillin, R-Brookville, said the bill tries to balance the rights of citizens against unlawful search and seizure with protecting law enforcement.

This, of course, does not mean that you can start blasting away at the coppers if they come into your house and you don’t think they are legally allowed to be there. That, my friends, is a good way to find yourself pushing up daisies. The new measure basically says that if an officer enters your home unlawfully, you’ll have the right to sue them. Got it? Good.

House Speaker Brian Bosma, R-Indianapolis, made one of his rare speeches on a bill in the House, saying the bill simply provides “jury instructions” so that if a case involving police entry into a home makes it to court, people will understand what is and is not allowed under the law. In fact, the Supreme Court, in its decision, basically invited the legislature to clarify Indiana’s law.

The bill, should it become law, can’t really be seen as a constitutional rights victory as 4th Amendment protections had been considered settled law for the last several hundred years before the Indy Supremes took it upon themselves to re-interpret a couple of hundred years of case law.

Since the House altered the original bill with provisions designed to protect police officers, the Indiana Senate will have to vote again before the bill goes to Governor Mitch Daniels. Incredible.

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24 COMMENTS

  1. “settled law for the last several hundred years before the Indy Supremes took it upon themselves ….”

    More like 225 years (give or take) – Several hundred implies 300 or more….

    Small correction, I suppose…

    Does anyone think outside the box (these Justices)? They have now set up the possibility of fake police doing home invasions and placed a home owner in an even more vulnerable position.

    • More to the point, if you kill a home invader pretending to be a cop will the police charge you with shooting a cop? After all, you didn’t know for sure this home invader wasn’t a sworn officer.

      I don’t know what the current laws are but if the IN. Supreme Court is willing to gut the 4th Amendment what else will they change?

    • No, the right to resist unlawful action (even when under color of law) with force, up to and including lethal force, is something we inherited from English Common Law, where the concept has existed for something like 800 years.

      Also, I can’t understand why they seemingly ignored the John Bad Elk decision entirely….

  2. IIRC what the court actually said was that there was a proper time and place to contest the legality of a search, which is in court, not at 3:00 in the morning at the home when the SWAT team is coming in through the windows.

    Not all warrantless searches are illegal, as there are well established exceptions to the warrant rule (note that the 4th amendment does not prohibit warrantless searches. The 4th amendment prohibits unreasonable searches.) And the legality or illegality of a search is not always known until after the search (for example, a warrant that is issued based on suspect testimony may later be deemed to have been illegally obtained, but the cop who executes the search warrant doesn’t have any way of knowing that.)

    I swear sometimes I think the official mascot of TTAG should be Chicken Little.

    • I think the bigger question with this ruling, and the 4th Amendment, is this: Should a homeowner, at 3am, be required to “stand down”? There are many variables at play. If a homeowner is a law-abiding citizen and not expecting to have a search, is it reasonable they take defensive actions. It is not always clear it is the police, and even if they have uniforms and yell police, how can you be sure with all the home invasions that happen?

      I will let the Chicken Little comment go, since it appears to be your attempt at humor.

    • “IIRC what the court actually said was that there was a proper time and place to contest the legality of a search, which is in court, not at 3:00 in the morning at the home when the SWAT team is coming in through the windows.”

      And, see, this is where we disagree. Furthermore, I contend that such force (no knock 03:00 SWAT raid) is unreasonable, thus making the search unreasonable, and therefore in violation of the Fourth Amendment.

      Lookup John Bad Elk vs U.S.

      QED.

    • We’re living in times when the police and the military are becoming indistinguishable, Congress just passed and the President just signed a bill that authorizes indefinite detention without charges of American citizens, and an American citizen was recently assassinated by the government to near universal acclaim. This is our world, and this blog expressing concerns about erosions in Constitutional protections makes it Chicken Little?

  3. Lookup John Bad Elk vs U.S.

    Just looked it up.

    (a) this case involved armed resistance to a warrantless arrest, not a warrantless search.

    (b) the cited case is from 1900. My books are at home but I’m pretty sure there have been more recent court cases in the intervening 112 years since John Bad Elk that directly address the issue of whether a person has a right to resist with force a search that that he believes to be illegal. 😉

    EDITED TO ADD: Here’s an excerpt from the Indiana court case at issue that actually discusses the evolution of the law since John Bad Elk was decided in 1900:

    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.

    (emphasis added.) So the Indiana court was not establishing a precedent, they were following one.

    • In the 1920s, legal scholarship began criticizing the right as valuing individual liberty over physical security of the officers.
      But of course, individual liberty is toilet paper to government.
      The physical security of the government, err, officers is paramount.

  4. So this brings me back once again to last month’s case in Massachusetts in which the SWAT team chainsawed the wrong door when looking to arrest a drug dealer. I’m really torn over how one would react to this one. Obviously, mistake or not, launching a counter-attack on a heavily armed SWAT team would most likely leave you dead, but if not, what are the legal ramifications?

    Is it better for you to roll over, hit the floor and let the cops sort things out or to open fire? The idea of surrendering your rights is nauseating, however, as the parent of young children, I’m not sure how happy the idea of having a protracted gun battle in my building makes me. Really no great answer here.

    • If someone uses a chainsaw on my door UNANNOUNCED they’re forfeiting their safety and possibly their lives.

      This stupid War on Drugs has resulted in dangerous practices like no-knock warrants all so cops can surprise drug dealers and keep them from destroying evidence. Ridiculous!

  5. I am proud to state I know Justice Rucker (the African-American justice in the photo) and even prouder to state he dissented. We often end up “chatting” as bar association events since smokers get banished outside. He is a good man and we need more like him.

  6. What about my Third Amendment rights? Who’s defending those? This blog is all about first, second, fourth amendment rights. I want to know my Third Amendment rights are being looked after also!

  7. I love it when appointed judges create public policy. Setting policy is supposed to be the job of the legislative branch who were actually elected by a majority vote of the people to do just that. Having unelected justices setting policy is about as un-American as it gets. It’s why I despised the Warren Court with its f^cking emanations and penumbras.

  9. You still have the right to fortify your door to the point they can’t get in for 5 minutes or more. This has actually worked in hurricane areas where building codes call for doors that open outward, steel frames, and no glass in the door.
    This way cops stay outside, your inside, they can either display a warrant for you or you can tell them to get a warrant and get off your lawn.
    Having been told by you to get off said lawn you can call your favorite attorney and if they do arrive in your living room, he can arrive too.

    I agree it’s all hypothetical and really sucks, but we have a militarized police force and that’s the fact. They are going to treat you like a criminal and a war enemy simultaneously. After they shoot your dog, trash your house, take you and the kids into custody, leave the front door wide open, and detain you for days you can sue them if you can afford it.

    And yes, CarlosT, all of this has happened in documented cases, some even worse. Chicken Little indeed.

  10. So, what some of you who agree with this heinous ruling are arguing the following:
    1) It is OK for the police to make a mistake, we are all human.
    2) It is OK for the police to destroy my property, traumatize my family, even injure and / or kill us.
    3) My recourse is to hire an attorney, spend thousands of dollars and who knows how much of my time to try and get justice in their court system.

    Sounds “reasonable” to me now.

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