Posted on 08/09/2011 5:15:39 PM PDT by OneWingedShark
Are we creating through “qualified immunity” a form royalty who are presumed to be exempt from having to respect the rights that citizens hold to be unalienable?
Indeed, that makes it contrary to at least several State Constitutions, South Dakota specifically prohibits it.
Yet, I fear that we already DO have classes of citizens: the police/Law-Enforcement and the "civilian" to name two; just look at how the law looks at a freeman and a policeman in possession of a weapon (especially in places like courthouses).
I am wholly against such classings of people; the law should apply to all equally. {If anything more accountability should be required of those that have more power/authority, but that is the exact opposite of what we see.}
That is very much the question.
It is also more though, for if you notice, the cited laws are from the US Code (by which you or I would likely be charged to their fullest extent) and yet seem to have less and less of a hold on those in positions of authority.
Sometimes there's an error on the warrant. Discovering the error is a question to be taken to court ~ not by blowing out the cop's brains.
In the same place (Indianapolis) a couple of cops drove by a man's fenced yard and saw his dogs outside romping and playing.
The cops stopped, shot the dogs, and then ran into the man's home guns drawn to DO SOMETHING.
He shot them dead.
What they'd done in shooting his dogs ~ with no warrent, and then entering his dwelling with guns drawn ~ with no warrant, and not in hot pursuit since having your dogs loose in your own yard behind a fence is not a crime, made them fair game ~ but he acted in self defense. He'd seen the cops enter his yard, kill his dogs, and break down his door. He had a reasonable belief that they were after him ~ and that they might not even be cops ~ so he shot them.
Virtually all the time you will NEVER encounter that situation. BTW, the court let him walk ~ his actions were ruled justifiable homicide in an act of self-defense.
At the other end of the line you have a situation where a woman called the cops to come to her apartment because her ex, who was MOVING OUT, was busting up her stuff.
When they arrived he even told the cops he was moving out.
You cannot address the points of law in this case without considering the rights of the woman to call the cops for assistance! Not in American law you can't ~ in Sharia Law you can ~ not in American Law.
Thank you! I've been searching for that quote and it's attribution lately and hadn't been able to find it, no doubt because I couldn't remember enough of the exact wording to do a good search. (In fact it occurred to me to look for it again to respond to that very same post till I saw you beat me to it! GMTA)
>Look here a moment ~ sometimes people end up someplace by accident ~ you’ve done it yourself. There is no death penalty authorized for making a mistake.
Oh, yes, there is.
There is no ‘undo’ on the battle field; there are many, many situations where this simple witticism may be correctly applied to life.
>Sometimes there’s an error on the warrant. Discovering the error is a question to be taken to court ~ not by blowing out the cop’s brains.
And how many citizens have died or been injured due those selfsame errors? (Think especially hard about SWAT team mobilizations.)
>You cannot address the points of law in this case without considering the rights of the woman to call the cops for assistance!
I already laid out a chain of reasoning wherein you can; it might not sit well with you but it exists: they could have looked exclusively at the jury-instructions and the claims of the man (concerning those instructions).
>Not in American law you can’t ~ in Sharia Law you can ~ not in American Law.
I’ve asked for references here; it may be absolutely true, but this is a case wherein I am going after what I can *prove* in court. That is why I structured my argument the way I did: considering the federal implication of the decision (4th Amd & Art 6, of the US Constitution) as well as the State (the Indiana State Constitution and the 14th Amendment prohibiting the States from abridging due process)... effectively that covers both the cases.
Many thanks for an interesting discussion.
Not sure, but I believe you will need to search out the Foreman for the Grand Jury, and find out what restrictions the courts have placed on his and the GJ’s power. Good luck.
What progress have you made?
No real progress to speak of.
Playing devil's advocate, the judge may have meant the term "unlawful police entry" been trying to refer to actions by cops which are facially legitimate, but which might at some later time be found to have been unlawful for some reason unknowable by the cops on the scene. Viewed that way, his argument would not be unreasonable, even though I disagree with it in some measure.
Essentially, the question the judge may have been trying to answer would be: "If a cop wishes to enter a person's dwelling with a facially-valid warrant, and a person articulates some basis for believing that a court which examined all the facts surrounding the warrant would find it to have been unlawful, does such articulable belief form sufficient basis for the person to resist entry?" The judge may have been concerned that answering in the affirmative would give a green light for people to resist warrant service on the slightest pretext.
My argument would be that if the warrant is facially valid for the search, and the person cannot demonstrate some reason why it is not, the person's belief that the warrant is invalid, no matter how reasonable that belief may be, is not sufficient basis to deny the search. HOWEVER, I would suggest that a person who is accused of having acted unlawfully while resisting a search has the right to have all factual matters related to the legitimacy of the search considered by the jury which would be instructed that if it finds that the search was in fact unlawful, it cannot convict the defendant for actions undertaken to resist it.
Essentially, I would require a jury to acquit if if found that either:
save for later
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.