Posted on 09/20/2011 12:41:36 PM PDT by FunkyZero
I agree with your take on things.
What I also find interesting is how many back-flips the police are willing to do to get assure illegal immigrants they have nothing to fear from calling the police, then they abuse citizen’s fourth amendment rights at will.
"This holding only applies to police officers who are acting in their official capacity and performing official duties. If they are not in their official capacity, you can batter them to your heart's content."
IF he doesn't identify himself as a police officer then your premise holds. If he does, it must be assumed by the homeowner at that time he is under official duty and you cannot resist him once his identity as a police officer is established. This is the crux of the argument, of course it is illegal to interfere with a police officer when he is performing his duties, that has always been the case. Boiled down this decision says "The homeowner cannot determine at the time of the search whether or not the search is legal. He MUST submit to it and file his grievance afterwords."
If a police officer goes to the wrong home address accidentally and performs search you cannot resist them even knowing full well that they are in the wrong, he is acting in his official capacity and lets face it, **** happens. This is to protect both the homeowner and the police officer, don't escalate the situation by resisting, go along with it and things will get ironed out later.
If your neighbor who is a cop comes home and finds his wife missing, and he suspects she is having an affair with you, if he walks into your house looking for her and you know he is a police officer You cannot resist the search, period. How do you know he didn't see her running into your house bleeding being chased by a guy with a knife? Absurd example I know, but it makes my point that the courts have determined that the officer is to be submitted to, your "opinion" of the legality of it is not an excuse to resist.
Determination of whether or not the search is legal, or whether he is under official capacity, cannot be determined by the homeowner at the time no matter how blatant the illegalities of it are. You can not resist, only submit and then report it later after he identifies himself as a police officer, period. This is the key to the whole argument here - Even in the case above knowing full well the officer was not acting in his official capacity, if you resist, you are guilty no matter what the outcome and punishment of the officer.
Most of the people here look at the ruling and think that it has closed all the doors to using the castle doctrine as a defense to a charge of battery against a police officer. However the job of a defense attorney is to look for ways around a law that their client has broken. In this case the court clearly left a door open for the use of the defense if it can be proven that the police officer was not acting in his official duties or that the officer was acting outside the course and scope of his legal duties as a safety officer.
The visceral reaction of most of the posters here is not the way you analyze a statute if you are a defense attorney or even a judge. The defense attorney will look for loopholes and jump through them. In this case the court left open a small loophole which, if given the right set of facts, is big enough to drive a Mack truck through.
If it is shown that the police officer was acting on a personal errand, such as looking for his cheating wife, then a homeowner could use the defense. It won’t mean he won’t be arrested and charged, but a good defense attorney can raise the defense given the proper facts.
Most of the posters here, I suspect, are just armchair law students or not schooled in legal analysis at all. FWIW, I am an attorney. I see a loophole in the opinion. As a rule, that is what people pay me to find. That is what lawyers do. You can argue that the decision closes the door, but the door is not locked, and the back door is still wide open.
LOVE!
Hello, darling. So nice to see you.
Likewise!
#1, the ruling in no way allowed a LEO to rape your wife.
#2, Stop and think. If you think a search is illegal, is it better to shoot it out with the cops at 3:00, when drunk, or is it better to argue for exclusion and damages later?
You have all the earmarks of a troll, but let's see if you can accept this reasoning.
They want the right to resist any entry they deem illegal. So what are the SWAT cops going to do when such a person displays a firearm or shoots at them? The SWAT team is going to kill them. And even if the search was improper, they will still be quite dead.
Their might be a large civil award to the survivors, or their might not be, but the homeowner is still very dead.
Be well.
>>They are saying that a police officer can now bust down your door and rape your wife in front of your very eyes and YOU CANNOT LEGALLY RESIST HIM. Period.
>
>Entry and search are one thing. Rape is another.
Really, and here I thought rape was defined as a sort of ‘entry’ itself... i.e. penetration.
>Please, do not post such stupidity. It makes us all look bad, not just you.
Except that how are you supposed to be able to resist one illegal activity when their entry is already illegal?
(And what if during their unwarranted ‘search’ they are planting something to be found during a warranted search later?)
Not exactly. By reading the case, one can discern that putative defendants to a charge of resisting entry are seeking is the right to raise an affirmative defense that they used reasonable force to curtail an entry they reasonably believed to be unlawful. The Indiana Supreme Court has not provided any "loophole" that provides access to the affirmative defense, when the unlawful entry is made by the police. The court points to the right to civil remedies, and the availability of a motion to suppress evidence; and says these are adequate.
The court openly says it finds this to be the best public policy - IOW, the court admits it is setting policy. It is making this public policy in a case where the affirmative defense is not available, because the entry was lawful.
Link to PDF of amicus brief by Indiana state legislators. In this brief, the amici argue that the public policy concerns underlying the self-defense statute support a right to reasonably resist unlawful entry by police.
And I understand exactly what you’re saying. I would also do what needs to be done, and then hire someone exactly like you to stand in front of a jury and convince them that the law in this particular case was never meant to cover that particular circumstance, and pray we had some sensible people that day.
Your counsel will need to find another line of argument, and of course may seek any other remedy that is available under the law.
With regard to this case, I would agree with you.
If you call about a fight in front of your home, you obviously haven’t given permission for the police to enter your home.
Thus calling 911 is not an automatic pass on the fourth amendment. It depends.
Either one will be deterred if a few folks in cop uniforms get shot at, whether it is cops or thugs in the uniform.
The way I see it is that anybody rushing through the door without a proper warrant is a thug.
The cop DOESN’T have to enter as long as ...
The women who called 911 comes outside, everyone else comes outside, and they all agree that noone is left inside except the father/husband/man.
Is someone, anyone, appealing this??
What if the homeowner asserts a belief that the person was a robber wearing a stolen or fake police uniform, given that there have been documented cases of robbers doing precisely that?
Should a belief that the act was unlawful, no matter how reasonably held, be considered a defense?
(from the other thread):
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:
But you can't really make it about the particulars of this case. This case is actually pretty easy. The woman was a legal resident of the home and authorized the cops to enter. Another resident shouldn't be able to resist their entry under those conditions. I'm sure the founders would have said that the cops should have the authority to enter in this case, but that hardly justifies the epic tangent the Indiana Statist Supreme Court went on, saying that even illegal entries must not be resisted, so long as they're perpetrated by cops. Ludicrous.
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