Court: No right to resist illegal cop entry into home (IN)

[Hazcat]

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

[MikeBjerum]

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 

[Hazcat]

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?

[2HOW]

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.

[CJS3]

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.

[Sponsor]

[bulldog75]

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. 

[PegLeg45]

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.

[kmitch200]

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

[fullautovalmet76]

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.

 

[fightingquaker13]

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