Replies

-- They want the right to resist any entry they deem illegal. --

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.

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.

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:

The defendant had a reasonable belief that the search was facially unlawful, and/or the cop could not have reasonably believed it to be legitimate.
The search was, in fact, unlawful, irrespective of whether the defendant had a reasonable belief of such legitimacy at the time.

The sets of facts required for the two defenses are somewhat disjoint. The former defense would not require that the defendant show that the search actually was unlawful, if the defendant had a reasonable belief that it was facially illegitimate; the second would not allow a belief in the illegitimacy of a facially-legitimate search, no matter how reasonably held, to be used as a defense unless the search was in fact unlawful.