Indiana Supreme Ct. ruled citizens dont have the right to refuse illegal police entry

[NORML54601]

http://www.nwitimes.com/news/local/g...3df229697.html

INDIANAPOLIS | Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry.

"We believe ... a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence," David said. "We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

The court's decision stems from a Vanderburgh County case in which police were called to investigate a husband and wife arguing outside their apartment.

When the couple went back inside their apartment, the husband told police they were not needed and blocked the doorway so they could not enter. When an officer entered anyway, the husband shoved the officer against a wall. A second officer then used a stun gun on the husband and arrested him.

Professor Ivan Bodensteiner, of Valparaiso University School of Law, said the court's decision is consistent with the idea of preventing violence.

"It's not surprising that they would say there's no right to beat the hell out of the officer," Bodensteiner said. "(The court is saying) we would rather opt on the side of saying if the police act wrongfully in entering your house your remedy is under law, to bring a civil action against the officer."

Justice Robert Rucker, a Gary native, and Justice Brent Dickson, a Hobart native, dissented from the ruling, saying the court's decision runs afoul of the Fourth Amendment of the U.S. Constitution.

"In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally -- that is, without the necessity of a warrant, consent or exigent circumstances," Rucker said. "I disagree."

Rucker and Dickson suggested if the court had limited its permission for police entry to domestic violence situations they would have supported the ruling.

But Dickson said, "The wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad."

This is the second major Indiana Supreme Court ruling this week involving police entry into a home.

On Tuesday, the court said police serving a warrant may enter a home without knocking if officers decide circumstances justify it. Prior to that ruling, police serving a warrant would have to obtain a judge's permission to enter without knocking.

Any of you SCOTUS buffs have an idea on how they'll rule when this eventually gets there?

[wishbone]

The ruling appears to be an overreach but per the case cited it sounds like it could be a case of exigent circumstance. The article is scant on the magnitude of the argument or if the wife may have requested assistance when the husband barred the police from entering the dwelling but one this is certain -- the husband was a complete dumbass for slamming the officer against the wall upon entry.

[jfoobar]

I hate to say it, but from a quick skim this sounds like a very practical ruling. While there will always be the occasional sensational case where the police behavior is so egregious (or is described that way in the media anyway) that, when provided as an example, makes it seem profoundly unjust to not allow citizens the right to resist illegal entry by police, the vast majority of the time it is entirely impractical to allow citizens to make a spur of the moment judgment about the legality of a police action to the point of physically resisting. Wow, that was a long sentence.

Any physical resistance of a police action, just or unjust, will inevitably result in violence, perhaps even deaths.

[kvrdave]

I don't mind the ruling, as I prefer that a court decide whether an entry is illegal or not, but only if the homehowner can sue the shit out of the state to an extent that they decide they should get a court decision before entering if there is any question.

[Red Dog]

Originally Posted by wishbone

The ruling appears to be an overreach but per the case cited it sounds like it could be a case of exigent circumstance. The article is scant on the magnitude of the argument or if the wife may have requested assistance when the husband barred the police from entering the dwelling but one this is certain -- the husband was a complete dumbass for slamming the officer against the wall upon entry.

I briefly read about this case yesterday and I had a similar reaction - it kind of sounded like exigent circumstances (and I believe the wife wanted them to enter). I'd have to read the case though to get a better understanding of the facts.

[crazyronin]

From the filing:

On November 18, 2007, Barnes and his wife, Mary, were arguing while Barnes was moving out of their apartment. During the argument, Mary tried to call her sister, but Barnes grabbed the phone and threw it against the wall. Mary then used her cell phone to call 911. Mary told the dispatcher that Barnes was throwing things around the apartment but stated that Barnes had not struck her.
Officer Lenny Reed responded to the 911 dispatch. When the officer arrived, he observed Barnes walking out of the apartment. Barnes was carrying a black bag. Officer Reed told Barnes that he was investigating a 911 call. Barnes told Reed that the officer was not needed, and that he should leave because Barnes was leaving. Because Barnes was yelling at the officer, Officer Reed told Barnes that he was going to arrest him for disorderly conduct if Barnes did not calm down. The officer noticed that people outside near the apartment building were staring at Barnes and the officer.

While Barnes was yelling at Officer Reed, Mary walked out of the apartment carrying another duffel bag. She threw the bag down on the ground, telling Barnes to take the rest of his things. Mary then walked back into the apartment followed by Barnes, Officer Reed, and another officer who had arrived on the scene. When they reached the doorway of the apartment, Barnes turned around and told the officers that they could not enter. Officer Reed explained they needed to come in to investigate the 911 call. Barnes continued to deny the officers entry. During the argument between Barnes and the officers, Mary called out to Barnes saying, “Don‟t do this.” and “Why don‟t you let them in.” Tr. pp. 25, 87.
When Officer Reed attempted to walk past Barnes to enter the apartment, Barnes shoved the officer into the hallway. Officer Reed and Barnes continued to struggle and eventually the other officer on the scene grabbed Barnes in a vascular neck restraint and took Barnes to the ground. Barnes continued to struggle and a taser was used to subdue Barnes. Barnes suffered an adverse reaction to the taser and was transported to the hospital.

It's not that hard, people. The PDF is linked in the article.

[Pizza]

I don't like it. It's an abuse of power and opens the door for more trouble. It basically says it's okay to perform an illegal police entry. It's just a technicality.

[jfoobar]

Originally Posted by Pizza

It basically says it's okay to perform an illegal police entry.

It doesn't say that at all.

It says that some abusive amped-up piece of shit who probably doesn't know the first thing about the law doesn't get to decide whether or not a police entry is legal or not in the heat of the moment and then physically resist the entry based on his likely incorrect legal conclusion.

[Sdallnct]

Originally Posted by Pizza

I don't like it. It's an abuse of power and opens the door for more trouble. It basically says it's okay to perform an illegal police entry. It's just a technicality.

No where does it say "it's ok". In fact it says the opposite. There are many remedies available after the fact.

[BearFan]

I do not understand the problem here, the woman asked for them to come in and there seemed to be a danger to her. By this argument, if I wanted to beat the crap out of my wife, I could so long as we stayed in the house while waiting for the cops to get a warrent. There seemed to be an immediate danger here and the police reacted.

[jfoobar]

Originally Posted by Pizza

I don't like it. It's an abuse of power and opens the door for more trouble. It basically says it's okay to perform an illegal police entry. It's just a technicality.

The opposite ruling would have inspired bad behavior. This ruling I don't see inspiring bad behavior at all. Police don't refrain from illegal entries and searches because they fear physical resistance from homeowners.

As to whether the wife had grounds to allow entry when the husband attempted to deny entry, Georgia v. Randolph probably has some applicability.

[Ranger]

Police take 911 calls seriously, so they are not going to leave just because someone tells them to. It's cases like this where the perp had it coming.

[Pizza]

Originally Posted by jfoobar

The opposite ruling would have inspired bad behavior. This ruling I don't see inspiring bad behavior at all. Police don't refrain from illegal entries and searches because they fear physical resistance from homeowners.

As to whether the wife had grounds to allow entry when the husband attempted to deny entry, Georgia v. Randolph probably has some applicability.

If someone inside the house allows entry, especially because they feel they need help - as in this case - I'm fine with the police breaking in because they got just cause. I still feel this new law makes it easier for police to perform illegal entries/searches, but I get what you're saying, they're going to do them either way. It's just now you can't legally resist them doing an illegal search. But, certainly I agree, if someone is in need of help, bust the door down.

[Vibiana]

She called 911. I have no problem with what happened in this situation. For all the police knew he could have been going back into the house with her to kill her.

[Josh-da-man]

This seems overly broad:

"We believe ... a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence," David said. "We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."

This makes it appear that the Justice believes the police should be allowed to enter your home at any time for any reason.

[wmansir]

Originally Posted by Josh-da-man

This makes it appear that the Justice believes the police should be allowed to enter your home at any time for any reason.

It says they PHYSICALLY should be allowed, but not legally. In the real world it's not a good idea to physically resist anyway.

[orangecrush]

Originally Posted by wmansir

In the real world it's not a good idea to physically resist anyway.

I don't understand why some people don't get this. The police officer can be wrong, but they also have a gun.

[Red Dog]

the woman asked for them to come in and there seemed to be a danger to her.

She actually didn't ask them to come in; not explicitly. She told her husband to let them in.

Originally Posted by Red Dog

I briefly read about this case yesterday and I had a similar reaction - it kind of sounded like exigent circumstances (and I believe the wife wanted them to enter). I'd have to read the case though to get a better understanding of the facts.

Now that I have read the opinion, including the facts, I don't see how they could reach such a blanket holding. It basically means if the police knock on your door and demand entry w/o a warrant, you must let them in. This turns the 4th amendment on its head. Just because a citizen might have post-violation remedies available to him nowadays does not make the forced entry any less egregious.

If they had simply made this an exigent circumstances exception, then there would be no issue. Or at least make it more narrow such as the dissent says:

It would have been preferable, in my view, for the Court today to have taken a more narrow approach, construing the right to resist unlawful police entry, which extends only to reasonable resistance, by deeming unreasonable a person's resistance to police entry in the course of investigating reports of domestic violence. Such a formulation would have been more appropriate for the facts presented and more consistent with principles of judicial restraint. Such a more cautious revision of the common law would have, in cases not involving domestic violence, left in place the historic right of people to reasonably resist unlawful police entry into their dwellings.

[wishbone]

In reading this case it sound like Barnes' conviction was appealed because he felt the prosecution omitted mentioning the unlawful entry of the police. I guess I don't understand how the prosecution was not able to argue it was lawful given the situation and now we have this one-size-fits-all lawful entry ruling.

[Red Dog]

Originally Posted by wishbone

In reading this case it sound like Barnes' conviction was appealed because he felt the prosecution omitted mentioning the unlawful entry of the police. I guess I don't understand how the prosecution was not able to argue it was lawful given the situation and now we have this one-size-fits-all lawful entry ruling.

Why would the prosecution want to argue something that could weaken its case?

It became an issue at the jury instruction phase when Barnes raised it (and presumably he argued it as an affirmative defense during the trial). The appeal was based on the trial court not accepting Barnes' jury instruction submission on the right to reasonably resist unlawful entry.

[wishbone]

Yeah, I understand the prosecution not spelling it out but you would think there would be inferences by the prosecution as to the 911 call and ensuring the safety of the woman with the police's entry given the verbal argument outside.

Damned if you, damned if you don't I guess.

[Red Dog]

Well sure, but again, it's not up to the prosecution to raise the issue since it is an affirmative defense.

[Red Dog]

40 Out of 50 Indiana State Senators (and 31/100 House members) Sign Amicus Brief Supporting Right to Use Force to Resist Unlawful Police Entry ):

http://indianalawblog.com/documents/Barnes%20amici.pdf

From volokh:

The brief argues that the Indiana self-defense statute, which allows the use of force “if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle,” is applicable whether the unlawful entrant is an ordinary citizen or a police officer. Neither the Barnes majority nor the dissent cited this statute, and my quick look through the briefs suggests that the parties didn’t mention it on appeal; I suspect that means they didn’t bring up at trial, either.

[wishbone]

My state senator and state representative signed it.

[NORML54601]

Originally Posted by Red Dog

40 Out of 50 Indiana State Senators (and 31/100 House members) Sign Amicus Brief Supporting Right to Use Force to Resist Unlawful Police Entry ):

http://indianalawblog.com/documents/Barnes%20amici.pdf

From volokh: