Court: No right to resist illegal cop entry into home‏

http://www.nwitimes.com ^ | 5/13 | Dan Carden

[Cheeks]

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."

[SFRigger]

Well stated raygun...thank you for saying it better than I was able. Not all LEOs are the jackbooted thugs we are made out to be. Most of us really do try to protect and serve.

[MindBender26]

Very well said.

If a person’s whose house is to be entered/searched is to be given the right to deny/delay the entry until a court ruling is obtained regarding their protest... gee, with appeals, that would only take about 30 months!

And you know.... I’ll bet every entry would be objected to, complete with ACLU notice posted on door.

[MindBender26]

#1, the entry was lawful. Wife invited them in, exigent circumstances, fleeing perp, etc.

#2, even if the entry was unlawful, courts have ruled, since 1942, that the proper place to seek redress for an illegal entry is the courts, in the light of a sober day, not at 3:00 AM by getting into fight with or shooting cops.

[Girlene]

This is part of story reporter chose to ignore.

Man and woman got into physical fight. She called 911. He was on lawn when cops arrived.

I have not read about a physical fight. I read she called 911 after husband threw her cell phone (while in an argument). He was leaving the apartment when the police arrived. She had told them she had not been physically harmed over the phone.

To run away from cops, he ran into house, baricaded door, told cops they could not come in. Wife, also inside asked them to come in to protect her.

That's not what the articles say. The story presented said she went back inside the apartment and so did husband. He refused them entry verbally and blocked the doorway. The wife did not ask them in; she told her husband not to "do this" and to "just let them in"......not the police officers.

Cops entered. He started fight, hit cops.

Again, that's not what has been written. He blocked the doorway. The police officer had to have "started the fight" by, I'm assuming, pushing against him.....otherwise, how would the police officer have entered? He did not hit the cops. Barnes (the husband) shoved a police officer against the wall. After struggling with the police officers, they put him in a choke hold and tasered him. He had to be taken to the hospital because of being tasered.

DEF sought to have case throw out on two grounds, Entry was illegal, and if entry was illegal, he had right to physically resist. Courts said no on both counts. Entry/search was legal for a number of reasons; wife’s request, prevent further violence, fleeing suspect, etc.

The wife never invited them in. There had been no physical violence except for the cell phone being thrown, he was not fleeing. In fact, he was leaving the apartment before the police officers arrived. They said he didn't have the right to "yell" in the parking lot.

Secondly, even if entry had been illegal, the husband’s redress is through the courts, not with his fists.

This case came about because his defense attorney wanted the jury to be instructed that his client had the right to reasonably resist the police from making a warantless entry. The judge in that case denied the jury instruction. The Indiana Court of Appeals ruled it an error for the trial court to deny that instruction and ordered a new trial. The Indiana Supreme Court (what we are discussing in this thread) reversed this ruling.

This is a VERY disturbing ruling, IMO. Oh, by the way, this same court decided LE officers don't even need to get a "no-knock" warrant issued when serving a warrant. OUR VIEW: The Knock on no-knock warrants

[MindBender26]

Of course there's a right to resist 'unlawful police entry'

You are right, but in what manner, what venue?

If LEOs demand entry, they obviously think they have a legal right to do so. If homeowner refuses entry, he obviously thinks they have no right of entry.

So the question becomes, what is the proper venue to decide this? A shootout or fistfight at 3:00 AM, or in court with suit for damages, exclusion, etc.

Actually, this decision is a homeowners friend, because in such a 3:00 AM altercation, the cops are not going to lose.

[MindBender26]

Of course there's a right to resist 'unlawful police entry'

You are right, but in what manner, what venue?

If LEOs demand entry, they obviously think they have a legal right to do so. If homeowner refuses entry, he obviously thinks they have no right of entry.

So the question becomes, what is the proper venue to decide this? A shootout or fistfight at 3:00 AM, or in court with suit for damages, exclusion, etc.

Actually, this decision is a homeowners friend, because in such a 3:00 AM altercation, the cops are not going to lose.

BTW, this court only reaffirmed what has been law since 1942 under the Model Arrest Act.

[MrB]

You’ve changed the scenario to a confrontation at the front door, with the homeowner awake and conversing/arguing with the police,

vs the situation where they bust down the door unannounced.

Also, should the homeowner be able to record/video the LEOs in your scenario?

[MindBender26]

Please read police reports and original trial testimony from LEOs, wife, etc.... not what some reporter said.

This case came about because his defense attorney wanted the jury to be instructed that his client had the right to reasonably resist the police from making a warantless entry. The judge in that case denied the jury instruction. The Indiana Court of Appeals ruled it an error for the trial court to deny that instruction and ordered a new trial. The Indiana Supreme Court (what we are discussing in this thread) reversed this ruling.

Exactly, but please also remember that this was decided long ago, in rulings starting in 1942, regarding the Model Arrest Act. Lawyer was blowing smoke..... because that's all he had.

[Girlene]

Your fleshing out of the story is appreciated.

Do you have the same opinion after reading my "fleshing out of the story" in post 44?

I have a lot of respect for police officers and the difficult job they perform. I also respect my rights and those of my fellow citizens. This was a somewhat difficult situation involving a husband and wife. The Indiana Court of Appeals had ordered a new trial because it did not feel the jury had been given proper jury instruction of his common law right to reasonably resist a warrantless entry into his home. I suppose at that point, a jury would have to decide if his actions were "reasonable" or not. The Indiana Supreme Court reversed that ruling, allowing the original conviction to stand without any such jury instruction.

[MindBender26]

Yes, they should be able to record, as long as they do not interfere, and they should be able to call their lawyer immediately.

[RobRoy]

>>The dissenting judges felt the ruling was far too broad and basically now allows govt agents to enter your home illegally for any cause.<<

I see it as black and white, which is how the law sees it and how judges should see it. If the cops do what you say above, it will cost them dearly in court. And I mean money. Lots of it.

Specifically, the ruling doesn’t say cops can enter your house illegally. It simply says that if they do, you can have your day in court, but you must respect the badge when it is in your home.

You’ll get ‘em later. And if you get a good ambulance chaser, you’ll get ‘em good. Think of that street person that was killed by the Seattle cop a few months ago. Without even going to court the city paid the family $1.5 mill. They cannot afford to do that on a regular basis. And a jury just may have REALLY socked it to them.

IOW, the issue is not whether the cops enter illegally or not. The issue is what you can do about the police presence, regardless of the legality. Notice I say “presence”, not “actions”. Sometimes a cop is so bad that you have to act in self defence AGAINST THE MAN. But you’ll probably wind up defending your action in court.

[RobRoy]

>>The dissenting judges felt the ruling was far too broad and basically now allows govt agents to enter your home illegally for any cause.<<

I see it as black and white, which is how the law sees it and how judges should see it. If the cops do what you say above, it will cost them dearly in court. And I mean money. Lots of it.

Specifically, the ruling doesn’t say cops can enter your house illegally. It simply says that if they do, you can have your day in court, but you must respect the badge when it is in your home.

You’ll get ‘em later. And if you get a good ambulance chaser, you’ll get ‘em good. Think of that street person that was killed by the Seattle cop a few months ago. Without even going to court the city paid the family $1.5 mill. They cannot afford to do that on a regular basis. And a jury just may have REALLY socked it to them.

IOW, the issue is not whether the cops enter illegally or not. The issue is what you can do about the police presence, regardless of the legality. Notice I say “presence”, not “actions”. Sometimes a cop is so bad that you have to act in self defence AGAINST THE MAN. But you’ll probably wind up defending your action in court.

[MindBender26]

Yes, they should be able to observe and record, as long as they do not interfere, and they should be able to call their lawyer immediately.

In doing so, they should say something such as, "Officer, I'm going to use my cell phone now to call my attorney," so cops are on notice they they do not have right to listen to call, and that you are not calling your brother in law down at the gun store to bring 6 guys with shotguns and beer :)

[Oztrich Boy]

So someone breaks down your door at 3:00 yelling police, you should shoot them?

It would simplify the options if the only people doing this were criminal gangs.

Actually it the police stopped doing it, so would the criminals. Win-win.

[RobRoy]

>>How many of us will have the resources to pursue years of litigation? <<

Actually, the family of the guy shot in Seattle got an out of court settlement of $1.5 million and it’s been only a few months. Fact is, the city can afford to “illegally enter” a few times, but it cannot be a policy, and won’t be. It will be too costly. Those years in court cost the city too. They cost a lot. And the publicity they create does not help.

The fact is, when police do illegal entries the press is very damaging, thanks in no small part to the internet. This particular ruling does not cross the line that we are all so diligently working to defend. It simply says that if the police enter your house without a warrant and it was unlawful for them to do so, it does not give you the right to come out of your bedroom, guns blazing, shouting “castle doctrine”.

[SFRigger]

It comes down to this....Wife called 911, police are dispatched to a domestic disturbance. New domestic violence laws require LEOs to do a thorough investigation to determine if a domestic violence crime has been commited. This is for the protection of the victim(s). Husband resists investigation. Pushing an officer, or anyone for that matter, constitutes an assault. Husband was subdued using less than lethal means. Officers are allowed to to use one level of force above the level being used against them.
If the wife wasn’t physically harmed, nor in danger of being physically harmed, she should not have called 911 as there was no real emergency. If you call 911, police and/or medical services are going to show up and investigate.

[Dead Corpse]

Or how about when they run out to Piggly-Wiggly for another gallon of 2% and some Doritos.

But that would require actual police work. Much better to just shoot first and fill out the CYA paperwork afterward.

[Girlene]

The 911 call was made by the wife. She informed them she had not been harmed at that point. When the police officers arrived, the husband was leaving. After speaking loudly in the parking lot and appearing agitated, etc, the husband reentered the apartment.

Now whether the situation was going to escalate between the husband and wife after the police left or waited to get a warrant, it is not clear. Maybe it would have, I don't know. The problem with this case (IMO) is that the Indiana Court of Appeals ordered a new trial because they found error that the trial court did not issue jury instructions that the husband had the right to reasonably resist a warrantless entry based on a right at common law. At that point, it would have been up to a jury to deteremine whether his actions were "reasonable". It was the Indiana Supreme Court that reversed that ruling saying "[in] Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.”

That is disturbing to me.

[Girlene]

Thank you for your opinion, SFRigger, and for your service. This is a difficult situation for me to assess since it WAS a domestic disturbance situation. It was the Indiana Supreme Court's broad ruling that reasonably resisting a police officer's unlawful entry is no longer recognized in Indiana that was VERY disturbing to me.

IMO, the jury should have been given such instruction, and let them decide whether the husband's and police officers' actions were reasonable or not.

[OneWingedShark]

Personal/private property rights died in 2005 so far as Jurisprudence is concerned; that was the year that the USSC ruled that some imaginary thought (”projections”) of an increased tax-revenue satisfied the restriction of “for public use” in the 5th amendment.