The Down Range Forum
Member Section => Down Range Cafe => Topic started by: Hazcat on May 14, 2011, 08:05:00 AM
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By Dan Carden dan.carden@nwi.com, (317) 637-9078 nwitimes.com | Posted: Friday, May 13, 2011 3:56 pm
INDIANAPOLIS | Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.
In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry.
"We believe ... a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence," David said. "We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."
David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.
--SNIP--
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.
--SNIP--
http://www.nwitimes.com/news/local/govt-and-politics/article_ec169697-a19e-525f-a532-81b3df229697.html
More and comments at link
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A cop that illegally enters property is no longer abiding by the law which means he is no longer operating as a law enforcement officer which means residents have the right to forcibly remove them. Either you accept that or you hire someone to superimpose a cycle and hammer over our stars and stripes >:(
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I'm really hoping this goes to a higher court somehow and gets reversed. This is truly frightening! How could any sane person believe what those judges ruled?
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In this case I believe the police need to insure that both parties are OK. A domestic violence scenario is probable cause to enter IMO. I do believe they have too much authority and do not need more. A third party only needs to infer a felony has been committed without any proof for an arrest to happen. Kinda like that gem of a law "public Intoxication" where they can arrest you without any sobriety tests at all, they just have to say you are under the influence.
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Thank God that Texas Supreme Court justices face elections every four years. If we get BS decisions like this, the judge can loose his job.
With any luck a federal judge will find that the new "law" enacted by the Indiana Supremes will be in violation of the US Constitution, but considering the attitude of the judicial elites, concerning the "little people", I won't be holding my breath.
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I have seen a lot of judges in my time and they are like diapers. (full of something and need changed often)
The reason behind this one is DOMESTIC VIOLENCE. They have to under most state laws investigate whether or not a domestic happened. I have seen this when they will run in the house to hide. Officers are required by (Ohio) to investigate all calls in reference to domestic violence. Reason behind it is if they just leave without investigating and someone ends up dead or hurt. The family of the victim will sue you and the department. I know it sucks but most officers are more scared of being sued over something like this than having to go to court over unlawful entry. It is a double edge sword Dam if you do and Dam if you don't.
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There was an 'incident' a little over fifteen years ago in a neighboring county where my best friend was a LEO at the time. The whole thing was swept under the rug, so to speak, to avoid undue publicity, but he was the investigating officer after the incident and recounted it to me later on.
It seems there was this very young new officer who was walking a neighborhood beat (yes, they still did, and do, this in smaller communities) and noticed a man sitting on his front porch drinking a beer. The cop then proceeded to inform the man that he was drinking illegally in public and needed to pour out the beer. The guy replied that he was on his own property and didn't need to do anything of the sort. Well, it escalated and the argument got more heated as the cop insisted that the guy was in violation of the public drinking laws (he was not). The climax to the situation began when the cop jumped the fence (the gate was locked) and entered the guys property to relieve him of his beer. As the cop was jumping the fence, the guy was reported (by neighbors) to have warned the cop not to come on his property. The cop went up onto the porch and knocked the beer out of the guys hand and then the guy proceeded to pound the hell out of the young cop. The cop had to be removed by stretcher via the EMT's.
After all was said and done, the cop was reprimanded and the police chief issued a personal apology to the citizen........it certainly never made the paper or news either.
This was one situation where the McLaury brother (from Tombstone) was correct when he said, "Wearing that badge don't make you right."
I doubt very seriously that the same incident would have the same conclusion today. I expect the property would be 'swarmed' with a BDU/riot gear-wearing assault team.
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Before the trial, Barnes tendered a jury instruction on the right of a citizen to reasonably resist unlawful entry into the citizen‘s home. The trial court refused Barnes‘s instruction and did not otherwise instruct the jury as to the right to reasonably resist.
Barnes was convicted, appealed, and the Court of Appeals overturned, and a new trial was ordered. Then it goes to the Indiana Supremes...
Barnes contests that his tendered jury instruction should have been given because it was a correct statement of a viable legal defense supported by the facts and because that defense was not covered by the other instructions. We acknowledge that the Court of Appeals followed its own precedents in its analysis. 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. Accordingly, the trial court‘s refusal to give Barnes‘s tendered instruction was not error.
So "public policy" is enough to do away with pesky things like rights?
Had the majority stated that followup of a 911 call to check for injury regarding a "domestic call" allowed entry, I might go along with that.
But to say: "In sum, we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law."
That is just insane.
Opinion text here: http://www.in.gov/judiciary/opinions/pdf/05121101shd.pdf
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I read this yesterday and thought the same as most here- very scary. I think this should go to SCOTUS, but I have to confess I don't like the chances of a reversal. There is some safety in leaving it at the state level and not allowing it to go further up the chain where if it is sustained the impact is enormous and potentially disastrous.
Folks, I hate to say this but I believe the whole "law and order" thing has gone too far.
>:(
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Before the trial, Barnes tendered a jury instruction on the right of a citizen to reasonably resist unlawful entry into the citizen‘s home. The trial court refused Barnes‘s instruction and did not otherwise instruct the jury as to the right to reasonably resist.
Barnes was convicted, appealed, and the Court of Appeals overturned, and a new trial was ordered. Then it goes to the Indiana Supremes...
Barnes contests that his tendered jury instruction should have been given because it was a correct statement of a viable legal defense supported by the facts and because that defense was not covered by the other instructions. We acknowledge that the Court of Appeals followed its own precedents in its analysis. 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. Accordingly, the trial court‘s refusal to give Barnes‘s tendered instruction was not error.
So "public policy" is enough to do away with pesky things like rights?
Had the majority stated that followup of a 911 call to check for injury regarding a "domestic call" allowed entry, I might go along with that.
But to say: "In sum, we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law."
That is just insane.
Opinion text here: http://www.in.gov/judiciary/opinions/pdf/05121101shd.pdf
Agreed completley Kmitch. I firmly believe, that except in extraordinary cases an appellate court should rule as narrowly as possible (within the bounds of common sense) on the issue before them. This prevents judicial overeach. Its doubly true of a SC. They could easily have ruled narrowly, saying that the circumstances gave the officers both probable cause and exigent circumstances (fearing for the wife's safety in a barricaded apartment) and let it go. Instead, without to my knowledge letting other cases with less pro-police facts percolate through the lower courts, they just said its a crime to resist a guy with a badge, even if he is operating outside the law. WTF?
FQ13
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Folks, I hate to say this but I believe the whole "law and order" thing has gone too far.
I don't think it is about "law and order." It is about control and governmental power. It also bothers me to see the militarization of the police forces under the guise of officer safety. While some of the tactical response operations do have their place, they are now becoming the norm and not the exception. The police no longer send a couple of cops to see what's going on, it is more like a full scale invasion of a small country.
But then, I also believe that the primary purpose of the TSA BS is to instill an obedience to authority in the general population.
I bet the cops in New Orleans are going to love this ruling.
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I don't think it is about "law and order." It is about control and governmental power. It also bothers me to see the militarization of the police forces under the guise of officer safety. While some of the tactical response operations do have their place, they are now becoming the norm and not the exception. The police no longer send a couple of cops to see what's going on, it is more like a full scale invasion of a small country.
But then, I also believe that the primary purpose of the TSA BS is to instill an obedience to authority in the general population.
I bet the cops in New Orleans are going to love this ruling.
No argument from me on what you wrote.... +1
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I don't think it is about "law and order." It is about control and governmental power. It also bothers me to see the militarization of the police forces under the guise of officer safety. While some of the tactical response operations do have their place, they are now becoming the norm and not the exception. The police no longer send a couple of cops to see what's going on, it is more like a full scale invasion of a small country.
But then, I also believe that the primary purpose of the TSA BS is to instill an obedience to authority in the general population.
I bet the cops in New Orleans are going to love this ruling.
Yep.
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There are only 2 ways I can see this ruling happening.
1 it was for a very, very narrow aspect. info that is not contained in the artical.
2. 3 of the 5 judges never actually practiced law, but were elected/appointed under false pretences. ( fyi, you don't need to pass the bar to be a judge.)
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There are only 2 ways I can see this ruling happening.
1 it was for a very, very narrow aspect. info that is not contained in the artical.
2. 3 of the 5 judges never actually practiced law, but were elected/appointed under false pretences. ( fyi, you don't need to pass the bar to be a judge.)
I'll vote #2.
"In sum, we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law."
That is taken from the published majority opinion, not the article.
At least the minority opinion judges have a clue:
But the common law rule supporting a citizen‘s right to resist unlawful entry into her home rests on a very different ground, namely, 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).
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A legal right is no longer recognized under Indiana law. WTH? ???
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So that means that Cops can get away with rape ? That's forced illegal entry.
I will be arrested by a cop coming in my place with out a warrant or invitation, But it won't be the first one in line, He'll be getting a fancy funeral.
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This decision is going to get a lot of good people (including LEO's) killed.... >:(
I read this yesterday and thought the same as most here- very scary. I think this should go to SCOTUS, but I have to confess I don't like the chances of a reversal. There is some safety in leaving it at the state level and not allowing it to go further up the chain where if it is sustained the impact is enormous and potentially disastrous.
Folks, I hate to say this but I believe the whole "law and order" thing has gone too far.
>:(
True on all accounts....
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No surprise to the ruling. Judges need to sign off on warrants for search/arrests so protecting the police will protect themselves....
The culpability lies with judges who will sign things that might be at the edge of legality.
Andy
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As a LEO I would NOT enter a residense of another person with out a warrant or very damn good probable cause. I am not too familar with this case from Vanderburgh County but I would not want a case to be lost by not have the proper paper work to back me up. Was the other party yelling for help? Was there visable signs of a struggle or fight? Still I do not like this out come from the courts, leaves too much of a gray area in the case law.
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As a LEO I would NOT enter a residense of another person with out a warrant or very damn good probable cause. I am not too familar with this case from Vanderburgh County but I would not want a case to be lost by not have the proper paper work to back me up. Was the other party yelling for help? Was there visable signs of a struggle or fight? Still I do not like this out come from the courts, leaves too much of a gray area in the case law.
Problem is that you are one of the "Good guys". You have a clear understanding of your purpose, and the rules by which it's to be accomplished.
Unfortunately there are the others, the ones who think the badge puts them above and beyond the rules, like in New Orleans. :-\
There are not enough like you, and to many of the other.
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Thought about this a bit and it ends up coming down to who is responsible to protect you? Yourself or the government?
I think this law is intended to offer protection to victims who do not take the steps needed to protect themselves.
While it might have good intentions, it doses exactly what is not needed: Making it easy to surrender control of your defense to others.
Would be more useful if, instead, they had the woman file a protection order and as part of that program they supplied her with several hours of training with a shotgun, an 870, a box of shells and a body bag.
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In this particular incident, the entire episode/entry could have easily been avoided had the resident complied with the officer's initial request to speak to the female party.
The resident was a dumbass who had a shocking experience. The officers were, sadly, doing their jobs. The judges, by setting such a precedent, were operating HUA.
My opinions, your mileage may vary.
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So, here's another scary tactic for getting into your home.
Delayed-notice search warrants, or "sneak-and-peek" warrants, allow federal agents to enter your home without telling you they’ve been there until months later.
http://www.koat.com/news/27922147/detail.html (http://www.koat.com/news/27922147/detail.html)
Another tool in the war on terror.
Think there is any possibility for abuse here? Now if Eric Holder would just go ahead and declare the NRA a terrorist organization......
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Do we actually still have ANY rights? >:(
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Do we actually still have ANY rights? >:(
Only if you are an "undocumented worker."
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I guess they can pick any door they want to enter as well;
http://www.suite101.com/content/supreme-court-chips-away-at-the-fourth-amendment-in-ky-case-a371395
The sad thing was they were not pursuing the guy they arrested. They picked the wrong door.
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I guess they can pick any door they want to enter as well;
http://www.suite101.com/content/supreme-court-chips-away-at-the-fourth-amendment-in-ky-case-a371395
The sad thing was they were not pursuing the guy they arrested. They picked the wrong door.
Well, as far as I can tell the 4th amendment no longer exists!
DAMN IT ALL!
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I kind of have buy into "exigent circumstance" for kicking in a door, if it is believed that an act of violence is being committed. Once in the house anything in plain sight is fair game. For a drug bust? No. Then searching without a warrant? No.
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Well, as far as I can tell the 4th amendment no longer exists!
DAMN IT ALL!
Well, it's not like it hasn't been on life support for a while. The 5A is shot with the Kelo decision, PC pretty much killed the 1A, and the 2A is bunkered down and being assailed on all sides. The good news? We don't have to quarter troops in our home (yet).
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So that means that Cops can get away with rape ? That's forced illegal entry.
isn't that what our and your governments are doing to everyone atm!!
Police state anyone!!!
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Well, as far as I can tell the 4th amendment no longer exists!
DAMN IT ALL!
You might remember Eric Scott who was murdered by Las Vegas police outside a Costo several months ago?
The latest is talk about the illegal search of his home immediately after the shooting, a warrantless search not only in violation of the US Constitution but many local laws and procedures as well.
It appears the police found a card on Scott's body that showed he possessed a Ruger LCP, which all friends say he never carried as it was a bed side gun.
The police needed to show he had another weapon and none was seen retrieved at the crime scene, and none in the search of the car Scott was in at Costco, so they got a lock smith to pick the lock on the house and searched it without any witnesses being present. They listed some things they took, but the LCP was not on the list, but it was available to be entered as evidence for a justifiable shooting.
If you wish to find more on this story, go over to the Confederate Yankee sight http://confederateyankee.mu.nu/ and scroll down. The case is being strongly presented there and it is a very long read of all the updates since the shooting.
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You might remember Eric Scott who was murdered by Las Vegas police outside a Costo several months ago?
The latest is talk about the illegal search of his home immediately after the shooting, a warrantless search not only in violation of the US Constitution but many local laws and procedures as well.
It appears the police found a card on Scott's body that showed he possessed a Ruger LCP, which all friends say he never carried as it was a bed side gun.
The police needed to show he had another weapon and none was seen retrieved at the crime scene, and none in the search of the car Scott was in at Costco, so they got a lock smith to pick the lock on the house and searched it without any witnesses being present. They listed some things they took, but the LCP was not on the list, but it was available to be entered as evidence for a justifiable shooting.
If you wish to find more on this story, go over to the Confederate Yankee sight http://confederateyankee.mu.nu/ and scroll down. The case is being strongly presented there and it is a very long read of all the updates since the shooting.
Oh Solus, this just sounds like a conspiracy theory to me. You mean to tell me that the police would try to do something unethical, and illegal? Perish the thought..... ::)
On a very serious side here, what you are talking about is disturbing. Thanks for the update
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Yeah...the police asked his girl friend, who was standing next to him when he was gunned down, and who is a co-inhabitant of the residence, which has standing in the state law for permission to search the house and she refused.
Instead of getting a warrant they called his brother who was flying in because of the killing and when he refused, although he had no authority to approve anyway, they called in a lock smith. All this on the day of the shooting.
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Yeah...the police asked his girl friend, who was standing next to him when he was gunned down, and who is a co-inhabitant of the residence, which has standing in the state law for permission to search the house and she refused.
Instead of getting a warrant they called his brother who was flying in because of the killing and when he refused, although he had no authority to approve anyway, they called in a lock smith. All this on the day of the shooting.
And I bet none of this came out in court.
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It hasn't gotten to court yet. When it does cops are going to jail.
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It hasn't gotten to court yet. When it does cops are going to jail.
From your mouth to God's ear, but I wouldn't hold my breath. This crap happens every day. Even OJ, guilty as hell, but the cops still tried to frame him. Despite embarrasing the LAPD and screwing up would should have been a slam dunk conviction, where was the punishment, Furman's contract with FOX? I hope his family gets a nice settlement, but I doubt it will go further, though I sure hope it does. >:(
FQ13
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This is America FQ, OJ was found NOT GUILTY.
Trial by JURY, not public opinion.
Nothing else matters.
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Oh Solus, this just sounds like a conspiracy theory to me. You mean to tell me that the police would try to do something unethical, and illegal? Perish the thought..... ::)
Since 1976, 150 coroner's inquests have been conducted in Clark County.
In only one case was the Metro officer found criminally negligent.
Those cops must be INCREDIBLY well trained. ::)
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You gentlemen and ladies do realize we no longer live in a free country don't you? So much abuse is tolerated and even embraced by many who believe it all makes them safer that freedom is an illusion at this point.
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You gentlemen and ladies do realize we no longer live in a free country don't you? So much abuse is tolerated and even embraced by many who believe it all makes them safer that freedom is an illusion at this point.
And most of it was justified by by the "war on some drugs".
But it's for the children, who we are indoctrinating to have no sense of responsibility and be totally reliant on "their betters" to make every decision for them.
It's a wonder they still bother with potty training, there must be a Dept. that knows when it's best for you to take a sh!t.