Posted on 08/09/2011 5:15:39 PM PDT by OneWingedShark
| In the case Richard L. Barnes v. State of Indiana, No. 82S05-1007-CR-343, the court issued the following: “we hold that Indiana [sic] the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.” Ignoring the misplaced word ‘Indiana,’ this statement is quite troubling in its implications. They are saying that nobody has the right to resist even an illegal police entry into ones own home... and there are no qualifying limitations on the statement whatsoever. This means that a police officer could break into you house and rape you, your wife, your kids, your dog and you have no legally recognized right to resist. Even something less extreme, say he likes your house and so he decides to move in with you… the Judiciary is telling you that you have no legal right to resist it. In presenting the history of the right to resist unlawful entry, the court cites “United States v. Di Re, 332 U.S. 581, 594 (1948)” in which the Supreme Court of the United States said: “One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases.” Now, the Supreme Court of the United States does not hear cases concerning statutory laws, but matters of Constitutionality thereof. The cited Di Re case, as well as the other case cited in the paragraph (Bad Elk v. United States), were brought to the Supreme Court of the United States as issues of the Fourth Amendment. So then,, we have the Indiana Supreme Court admitting that the Fourth Amendment involves the right to resist an unlawful entry by the police. So right there we have a contradiction; but let us suppose that the Indiana Supreme Court would claim that the 10TH Amendment, which reads “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are preserved to the States respectively, or to the people.” gives them the authority to make such a declaration. As the Indiana State Constitution does establish (in Article 7, Section 1) the State’s judicial power and gives its Supreme Court (in Article 7, Section 4) the authority over “”l appeals of criminal cases, the power to review all questions of law, to which the question “do I have the legal right to resist an illegal police entry?” rightly belongs. But in citing the Di Re & Bad Elk cases the Indiana Supreme Court acknowledged the United States Supreme Court as having addressed these issues in regards to the 4TH Amendment; in so doing, they failed to recognize that such reasoning also applies to Indiana’s State Constitution which in Article 1, Section 11 says: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized. A word-for-word copy of the 4TH Amendment. So, unless the Indiana State Court can argue that the capitalization of ‘Oath’ and ‘Warrant’ so significantly change the meaning of the sentence they must acknowledge that the sentence has already been held to mean that the people do indeed have the right to resist an unlawful entry perpetrated by the police. Now for the coup de grâce, where I show that this to be a felony:
Because Indiana’s State Constitution does not cite the authority of the Judiciary to amend the State’s Constitution (Article 16), this must be a violation of the United State’s Constitution’s 14TH Amendment’s prohibition of a State denying due process (Section 1). (And this in addition to the violation of the 4TH Amendment & paragraph 2 of Article 6 of the US Constitution.) Therefore, it is obvious that the Supreme Court of Indiana is indeed guilty, and confessed of their own decree, of committing felony; and their declaration is also, in practice, encouraging those in law-enforcement to do the same. |
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
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