Posted on 05/13/2011 6:35:22 AM PDT by jaydubya2
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.
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.
Professor Ivan Bodensteiner, of Valparaiso University School of Law, said the court's decision is consistent with the idea of preventing violence.
"It's not surprising that they would say there's no right to beat the hell out of the officer," 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."
Justice Robert Rucker, a Gary native, and Justice Brent Dickson, a Hobart native, dissented from the ruling, saying the court's decision runs afoul of the Fourth Amendment of the U.S. Constitution.
"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," Rucker said. "I disagree."
Rucker and Dickson suggested if the court had limited its permission for police entry to domestic violence situations they would have supported the ruling.
But Dickson said, "The wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad."
This is the second major Indiana Supreme Court ruling this week involving police entry into a home.
On Tuesday, the court said police serving a warrant may enter a home without knocking if officers decide circumstances justify it. Prior to that ruling, police serving a warrant would have to obtain a judge's permission to enter without knocking.
Not that I blame them, but when LEO’s go into a situation after someone who shot and/or killed a Police Officer - they go in ready to shoot - and I wouldn't give even odds of the perp coming out of the situation alive.
Not sure WHAT the actual odds are in that situation - swiss cheesed suspects often do live - it might be a bad bet on my part.
Welcome to Obama’s America.
Wow, just wow. This has to be appealed to the federal courts. Unless that was the intention, to give the federal courts fodder to make this the law of the land.
Don’t ever make the mistake of assuming that what the courts do doesn’t have a political agenda, or at least an underhanded scheme, involved.
Yes, and it was recently upgraded in 2006 - IC 35-41-3-2
(a) A person is justified in using 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. However, a person:
(1) is justified in using deadly force; only and
(2) does not have a duty to retreat;
if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.
(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, or curtilage, or occupied motor vehicle.
(c) With respect to property other than a dwelling, or curtilage, or an occupied motor vehicle, a person is justified in using reasonable force against another person if the person reasonably believes that the force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in the person's possession, lawfully in possession of a member of the person's immediate family, or belonging to a person whose property the person has authority to protect. However, a person:
(1) is not justified in using deadly force; unless and (2) does not have a duty to retreat; only if that force is justified under subsection (a).
(d) A person is justified in using reasonable force, including deadly force, against another person and does not have a duty to retreat if the person reasonably believes that the force is necessary to prevent or stop the other person from hijacking, attempting to hijack, or otherwise seizing or attempting to seize unlawful control of an aircraft in flight. For purposes of this subsection, an aircraft is considered to be in flight while the aircraft is:
(1) on the ground in Indiana:
(A) after the doors of the aircraft are closed for takeoff; and
(B) until the aircraft takes off;
(2) in the airspace above Indiana; or
(3) on the ground in Indiana:
(A) after the aircraft lands; and
(B) before the doors of the aircraft are opened after landing.
(e) Notwithstanding subsections (a), (b), and (c), a person is not justified in using force if:
(1) the person is committing or is escaping after the commission of a crime;
(2) the person provokes unlawful action by another person with intent to cause bodily injury to the other person; or
(3) the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.
(f) Notwithstanding subsection (d), a person is not justified in using force if the person:
(1) is committing, or is escaping after the commission of, a crime;
(2) provokes unlawful action by another person, with intent to cause bodily injury to the other person; or
(3) continues to combat another person after the other person withdraws from the encounter and communicates the other person's intent to stop hijacking, attempting to hijack, or otherwise seizing or attempting to seize unlawful control of an aircraft in flight.
“Try that here and see how well that works for you...”
No doubt, but they don’t know where the secret location of “here” is so they won’t be able to try.
No the one shot to death by swat and then allowed to bled to death. Cops are not your freind.
Indiana-Indianapolis. He was a JAG, a defense counsel at Gitmo, and he was a Daniels appointee.
You didn’t read the article. They had permission of one of the occupants to enter.
8^D
Can you provide a link to the text of the decision?
Like I said - I wouldn't give even odds of the guy coming out of the situation alive.
;^\
Thank you very much; I will read it now. I usually find press accounts of judicial decision inadequate.
That's the INVITATION TO THE POLICE TO ENTER THE PREMISES.
He gets POd when the cops come and he ends up in apartment with the cop ~ and wife.
The decision doesn't have a thing to do with the facts of the case. Lawyers will argue the facts in future cases and where this case doesn't match their facts, they'll ask the judge to forget about it.
I think this one got all balled up when the lawyers in the trial got into instructions to the jury. Somebody got the idea the hubby had a right to keep the cops out. Maybe he didn't realize SHE'D CALLED THEM!
Or, you called the cops to come and corral your wife ~ running around tossing furniture at you for spending too much time on FreeRepublic?
They don't stop for warrants to accept invitations into your home.
Or, you called the cops to come and corral your wife ~ running around tossing furniture at you for spending too much time on FreeRepublic?
They don't stop for warrants to accept invitations into your home.
Couldn't jump out more if it were flashing neon.
The fourth amendment is dead.
Bad cases make bad law ~ as a rule ~ but here we have a perfectly good case and the judge who wrote this one seems to have been on dope.
Somebody should look into that problem ~ and check out the other two who voted with him.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.