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To: Cboldt
By my reasoning, the dissent supports a conclusion that the affirmative defense jury instruction is not available.

The dissent was discussing whether it would be available under the facts of this case. I don't think it would be. The controlling authority clearly states that if the police are acting within the course and scope of their duties as police officers then the castle doctrine will not apply.

The court clearly left open the opportunity that the defense is available if the police have entered into criminal conduct or are otherwise acting outside their authority. An illegal entry can be a lawful exercise of police discretion. The remedy for such an illegal entry is to sue for trespass, sue for damages, and to exclude any evidence collected. In other words, the remedies are CIVIL remedies and the remedies do not include a right to beat the hell out of a police officer because you think you have some right to privacy that is being intruded upon.

97 posted on 09/20/2011 9:47:23 PM PDT by P-Marlowe (LPFOKETT GAHCOEEP-w/o*)
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To: P-Marlowe
-- An illegal entry can be a lawful exercise of police discretion. The remedy for such an illegal entry is to sue for trespass, sue for damages, and to exclude any evidence collected. In other words, the remedies are CIVIL remedies and the remedies do not include a right to beat the hell out of a police officer because you think you have some right to privacy that is being intruded upon. --

Are you sticking with the contention that the affirmative defense is available? Because above, you are discussing alternative remedies at law.

What's with "an illegal entry can be a lawful exercise"? That's doubletalk. There's nothing in either decision that has language like that. The entry is either lawful, or not. If it is lawful, there is no right (which has to be positively asserted as a defense) to offer resistance.

Nobody is claiming a right to beat the hell out of a police officer because you think you have some right to privacy that is being intruded up. You know damn well the limits of force available in self defense.

You get the last word here. The cases speak for themselves, and I've had my say and then some.

99 posted on 09/20/2011 10:04:54 PM PDT by Cboldt
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