The Right to Resist

Huh?

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 case sprang from a domestic incident. A husband and wife were arguing and the cops were called. The couple refused to let them in the house and the cops came in anyway. When the husband resisted, they tasered him.

Not surprisingly, the media are able to find some soft-headed academics to praise the decision for “reducing violence”. The problem with their justification is that our Constitution is not set up to prevent violence; it’s set up to guarantee our liberty. And if there comes a time when we have to protect our liberty with violence, such action is utterly consistent with our Founding, with 200 years of American history and 900 years of Western European history. And it’s not like this guy initiated an armed standoff. He shoved a cop who was violating his home.

There’s an arrogance to this decision — a belief that citizens are incapable of deciding the extent and nature of their liberty; only the courts can decide that. You are incapable of deciding, in the moment, whether someone is violating your Fourth Amendment rights; only someone who’s gone to law school can make that decision in the oasis of calm that is the court room. But we don’t defend our liberty with ex-post facto court decisions, especially given the tendency of the Courts — like this one — to default to siding with the state.

Of course, it bears pointing out the obvious: the Courts have had no problem with violent confrontation when that violence is initiated by the state. The Courts have routinely deferred to the needs of justice when judging the legitimacy of violent no-knock raids to arrest people growing pot or playing poker or even just selling raw milk (I shit you not). Throwing battering rams into doors, smashing windows, tossing in flash-bangs and shooting dogs in the process of delivering a warrant is OK. We sure as hell don’t want to prevent that violence. But don’ you dare stand in the way of an officer when he wants to come in without a warrant or even probable cause. Best to sort that out in the court system afterward.

The state does not have an intrinsic monopoly on violence. We voluntarily give that monopoly to them in order to maintain a civilized society. But when the state violates the terms of that agreement — terms spelled out in a legal contract called the Constitution — either through action or inaction, we have a right to resist. Usually peacefully. But sometimes with an appropriate amount of physical force.

Hopefully, SCOTUS will take this on. I have no idea how they’ll rule on it. But I know perfectly well how they should.

Comments are closed.

  1. JimK

    How can anyone not see the sum of all of these “small moves” as anything other than a blatant effort to subvert – and destroy – the very fabric of what makes this nation different from other nations? Again, I ask…when does fomenting actual revolution become not just a reasonable thing to discuss, but something that we, as decent, ethical and moral citizens, are compelled to do?

    In other words, when do we say “Fuck you” and start dumping tea?

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  2. Manwhore

    Yeah, I agree with you Hal. When I read the decision, it had this tone of “Let our storm troopers do what they want. You can let us iron out the aftermath in court.”

    If it’s an illegal search the cops shouldn’t be able to do it. You should have the right to protect what little rights we have left. You should be able to refuse the right of search your own home. You should have the right to resist a cop doing whatever the hell they want to.

    Some would say the court will iron it out, but if it was wrong to do so in the beginning, there’s no reason to allow it to happen so you can later rule on it.

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  3. Kimpost

    Will this now change the movie industry forever? How many great movies have we not seen where villains arrogantly (often with a British accent) send cops packing because they have no warrant?

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  4. HARLEY

    Basically this ruling removes all teh protections of teh 4th amendment!
    Officer are allowed to enter your domicile unlawfuy to conduct their business! Which is bulshit.
    basicaly you have no right to defend your sef from the government even if they are in the wrong.

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  5. richtaylor365

    I saw this post last night and my initial reaction was to let sleeping dogs lie. But there has been so much wrong interpretation and mis understanding in some of the comments that, just like Michael in Godfather 3 ,”Just when I think I’m out, they suck me back in”.

    How many great movies have we not seen where villains arrogantly (often with a British accent) send cops packing because they have no warrant?

    This ruling changes none of that, in those instances where you needed a warrant to conduct a search or execute a search warrant, you still do.

    Basically this ruling removes all teh protections of teh 4th amendment!

    No, no, and oh BTW, No

    Your 4th Amendment protections are still protected, this changes none of that.

    What the court actually said is that in Indiana if you are on the business end of either a perceived (more on that in a minute) illegal search or contact, or an actual (lawfully adjudicated) illegal search or contact, it is best to not physically resist, but to exercise your legal right to resist at a later time within the court process. Now you can disagree with the principle behind this but what the judges were saying was that it is safer for everyone involved (both the victims and the cops) if you save your constitutionally protected resistance (they are not taking these away from you) for future legal action, do you see the distinction?

    Lets go back to the actual arrest, did everyone read what actually happened? The wife called the cops because she was in fear from the husband. As an aside, domestic violence laws have changed over the years, use to be that if the wife did not want to press charges then the cops could not do anything, that has all changed and there are very very serious consequences for the police if they do not follow strict procedural guidelines, not only termination but civil rights violation charges brought, the cops take this stuff very seriously for their own protection. Back to the case, the cops get there and the couple is arguing, while trying to investigate further the wife goes back in the house, then the husband goes back in while the cops are still trying to talk to him. He blocks the door to the police, the wife is pleading with him to let them in, he refuses. From the police standpoint, the situation is not resolved, the wife is still in danger (that is why she called in the first place). Now lets assume for a moment that the police say ,”Hey Joe, they are both in the house, the guy wants us to leave and is not letting us in, let’s get out of here, donut time”, they leave, the argument now escalates, and he assaults her. What do you think the liability is for the cops that left? In this instance they do not leave, a scuffle ensues with the husband getting tazed and arrested.

    In this instance I would submit that the entry was not unlawful but what the court said was even in those instances where it is deemed unlawful, it is best not to physically resist (because people would get hurt), but to initially acquiesce, then later sue the shit out of them. Now I know some might roll their eyes and say ,”Yeah, like that really does any good”, I happen to know from personal experience, yes, it does work, cops have been fired and agencies have been sued for big bucks over unlawful police intrusions.

    A couple more examples: You are cruising down the highway rocking out to the radio and you see the red lights flashing behind you. You say to yourself ,”Self, I know for a fact that I was not doing anything wrong so if that cop wants to stop me then it has to be an illegal stop, I know my rights, I do not have to stop for him”, and you keep going. A pursuit results involving several police cars, who finally stop you, you continue on with this meeting of an illegal stop (you think) with physical force on your part, and you get put in the hospital. Would it of been better to pull over (submit to the perceived illegal stop) then deal with it at a later time? The resulting xrays that show several broken bones would think so.

    One more. You are doing some shopping at Target, your black bulky cellphone is sticking out of your waist band in such a manner that it looks like a handgun. The clerk sees it, calls the manager, he sees it, and calls the cops. The cops get there, they approach you and ask you to raise your hands. You know you did not do anything wrong so you resist, a fight ensues where you get taken to the ground, fall on a little old lady who breaks her back. After cuffing you and searching you, the cops see that it was only a cellphone, but guess what ? you now go to jail for resisting and 6 months down the road you get sued by the little old lady’s insurance company.

    This all goes to the sentiment the court was trying to reflect, that with all police contacts, legal and illegal, the potential for harm is great (they carry the guns and they work under the legal precedent that they can not back down but must act) so even on those instances where they are wrong in their intrusions (it still does happen) that there are better ways to protect your rights then to scuffle with the cops.

    I think there is much room for rational debate, concerning this case, on the actual merits, lets stick with those, and not wrongly extrapolate this out into wild accusations of lost constitutional rights.

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  6. JimK

    You are cruising down the highway rocking out to the radio and you see the red lights flashing behind you. You say to yourself ,”Self, I know for a fact that I was not doing anything wrong so if that cop wants to stop me then it has to be an illegal stop, I know my rights, I do not have to stop for him”, and you keep going.

    But that doesn’t work as an analogy. The root outrage here is removal of a very basic tenet of law since the days of kings: Barring specific and extreme extenuating circumstances, your home is sacrosanct. Period.

    I don’t agree with your take on this at all. The ruling overreaches the circumstances of the original issue, which was that one resident of a home was granting permission while the other resisted. The ruling appears to remove the ability of anyone – let’s say someone who lives alone and *is* alone at the time of police confrontation- to refuse police entry even if they have no warrant.

    We’re not talking about Target or a car on a public roadway. We’re talking about your home. This dismantles the concept of the castle doctrine and everything that stems from it. It destroys hundreds – or rather thousands – of years of legal precedent.

    That is a big, big change in the basic function of law in this country.

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  7. richtaylor365

    But that doesn’t work as an analogy

    It works if the argument is: Do you have the legal right to resist an unlawful police contact, search, or seizure? projecting this from the home to public purview was a natural extension, I was just cutting off that argument at the pass.

    But let’s talk about the home:

    Barring specific and extreme extenuating circumstances, your home is sacrosanct. Period.

    This particular case, that has not changed. The cops did not pick his door at random to bust in. They were called to scene of “An ongoing domestic violence incident”. now, as I tried to explain above, these cases can not be ignored and must be handled to conclusion. While in the middle of their investigation, the husband barred the door, they can’t just leave.

    Another legal concept, The Special Relationship, is also in play here, what that says is when there is a police contact, a special relationship has been formed, that any potential for harm must be addressed before they leave or they are liable. In this instance (as with all domestic violence calls) the victim’s needs must be addressed, that is why the cops were there. But that could not happen because he was blocking the door.

    I was probably not clear in my above comment, but I also think this is a bad ruling, I was only addressing if from the position of why I think they ruled the way they did. It gives the impression (wrongly) that somehow a state court can abrogate constitutional protections and that is silly. The penalties or punishments for the police doing bad things have not been removed. You can still sue the police for civil rights violations, what this court is saying is that if the police makes a mistake and violates your Castle protections, do not physically resist, save the restitution for the courts.

    And I think my two analogies provided are apt because if one is willing to resort to physical violence in the protecting of his home, he would also be just as apt to go that route if he thinks his constitutional rights were being violated, don’t you think?

    So, to re iterate, I’m with you guys that this was a bad ruling but not for your reasons, you think it gives the police license to do what ever they want and weakens your 4th amendment protections. I think it does none of that but is bad because it weakens the concept that a man’s home is his castle and he should be safe from such police mistakes.

    Hopefully, I explained that a little better.

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  8. Section8

    In other words, when do we say “Fuck you” and start dumping tea?

    The populace as a whole won’t do anything until everything is gone. The reason is you risk losing everything taking a stand now, you’ll be labeled, and most people won’t risk that. The only time they’ll take a stand is when the risk of losing everything is already gone since they’ll have nothing. Basically, people will start to fight for what is right when there are no rights left, and then it will be too late.

    Power brokers will always try to find a way to steal this country and have tried from the beginning. Thanks to the second amendment they aren’t able just to shoot their way into tyranny, but they have done a fantastic job of using a back-end method of propaganda. Why steal when you can just convince people to hand it over?

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  9. HARLEY

    Hmm, it still comes down to, take your lumps now, and chances later in the courts.
    Given the nature of police entry teams, and the resultant unsuccessful legal actions after many no knock raids, im not filled with a lot of confidence.
    From what i understand, this ruling make teh case that id does not matter what the circumstances are, whether legal or illegal.unlawful, the actions of the police are, you HAVE to obey them, as risk of your own and others life.

    So the police are our betters.
    “cattle cars this way, sir , thank you , just step up, and remember we are the legal authority, when you get yo your destination, you can file a protest, all legal you see, ”
    thanks anyway.

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  10. richtaylor365

    Hmm, it still comes down to, take your lumps now, and chances later in the courts.

    But that is what this court is saying, that if you comply and open the door, no one gets any lumps, it is safer for everyone.

    Given the nature of police entry teams, and the resultant unsuccessful legal actions after many no knock raids, im not filled with a lot of confidence.

    Let’s not conflate this ruling with exercising a search warrant, two different kettles of fish. And your confidence notwithstanding, I have been involved in more than a dozen different cases where citizens have sued the State of California for shenanigans just like this, and won. I guess they could have gone the physical violence route initially, but they handled it the smart way, and are now the richer for it.

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  11. HARLEY

    from the dissent, located at The Volokh Conspiracy.

    [T]he common law rule supporting a citizen‘s right to resist unlawful entry into her home rests on . . . the Fourth Amendment to the United States Constitution. Indeed, “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585 (1980). In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.

    In Miller v. United States, 357 U.S. 301, 313–14 (1958) the United States Supreme Court held that it was unlawful to arrest the defendant on criminal charges when a warrantless arrest was conducted by police officers breaking and entering the defendant‘s apartment without expressly announcing the purpose of their presence or demanding admission. In recounting the historical perspective for its holding the Court quoted eighteenth century remarks attributed to William Pitt, Earl of Chatham, on the occasion of a debate in Parliament:

    The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!

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  12. richtaylor365

    The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!

    Yep, a sacred tenet of Anglo-Saxon jurisprudence, but your comment bolsters my argument. If “The king of England” were allowed to randomly bust down doors for entry, with no legal recourse or no threat of legal action taken against them, then yes, 900 years of legal precedent would indeed have been set on it’s head. But that is not the case. The incident precipitating this ruling was not random, and in this country we still have Constitutional protections against such conduct, let’s not lose sight of that. The court is not excusing police bad behavior or saying that the bad behavior should go unpunished, it is only saying that the punishing should be done, not at the front door, but through the court process.

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  13. HARLEY

    but through the court process.

    I think it is a very sad thing to say, but here it is,
    I do not trust the court process.
    WE as a a society are moving to a more authoritarian society, it is very troubling to me. I have read of the cases where cops have hit the wrong house on a no knock raid people that, who, having their doors burst in at 2 am,responded in the normal manner, and were killed for it.
    the police in question, either got a slap on the wrist, or worse nothing at all.
    IT sem the only time that there is a consequence, is when they hit a official of the government, by accident. Such a s Judges and Mayors.

    Now, I do understand waht you are saying, and yes , you are probably right, in a sense that we must keep this whole mater civil, and not take to violent action, but i still find it hard to accept that a man can enter my home, with a weapon, threaten my life and that of my family, solely on hte basis of who he is working for.

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  14. hist_ed

    and i should never post drunk,

    Fuck that shit man-some of the best posts (some with added unintentional hilarity) ’round these parts come from the help of the suds

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  15. Manwhore

    But that is what this court is saying, that if you comply and open the door, no one gets any lumps, it is safer for everyone.

    Again, this outlines a set of rules for thee but not for me. If the search is illegal, it is illegal. It’s that easy. It’s a waste of taxpayer money to let that happen and then have to iron it out with a public pretender.

    The car analogy doesn’t work because a detention is not an illegal search. This tramples all over private property and basically tells you not to resist whatever cops do because it’s worse to do that than exercise your rights.

    That may be the type of society that you’re comfortable with, but my attitude is that when we lose our last rights it will be at the hands of “safety, children, and what’s BETTER for you in the end”.

    Basically this is Nanny State 101 handed down to the sheeple from people who “know better than you.”

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  16. AlexInCT

    This is fucking insane. Seriously the more of this shit that I see, the more I worry that things can and will only get worse. And they all think they are curtailing our freedoms for our own good, as if we are petulant and immature children, unable to deal with the very rules that made this nation great. This shit is why they want to take weapons too. When people are abused, as this ruling surely will lead to, the ability to fight back is the last thing these bastards want us to have.

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  17. AlexInCT

    What the court actually said is that in Indiana if you are on the business end of either a perceived (more on that in a minute) illegal search or contact, or an actual (lawfully adjudicated) illegal search or contact, it is best to not physically resist, but to exercise your legal right to resist at a later time within the court process.

    Since I as is don’t turst our legal system and the shysters that run it, I would prefer not to leave the guarantee of my freedom to their whims. How long will it be before some judge tells a defendant, sure I know the search was illegal and all that, and I even know you didn’t resist, but we found something we don’t like, and for that you are now being charged and looking at jail time. Fuck that.

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  18. Kimpost

    :)

    Ja, det gör jag.

    But in honesty I understand the ruling. I just felt like being a bit silly.

    P.S. You almost got it 100% right. You only missed an “a”. “Kompis. Talar du svenska?” Google translate?

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  19. Manwhore

    Learned my Swedish from kids. We abbreviate for SMS messages. A gramar lesson I’m probably due for.

    Stabil som fan!

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  20. richtaylor365

    I’m with you, Harley, 100%, I don’t trust them either, but that does not discount or abrogate constitutional protections that we all have. We can slippery slope all day long but the simple fact is that the police government is not above the law, we have rules, written rules that they must adhere to, and when they step over the line and violate those rules, we as citizens have recourse. This ruling in no way changed that, that is the bottom line.

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  21. richtaylor365

    This is fucking insane. Seriously the more of this shit that I see, the more I worry that things can and will only get worse.

    This is why we as citizens must stay alert to what is going on, stay informed, and when needed, to push back. But going off on wild tangents does not help the matter. Because I have a unique perspective and have seen both sides does not mean that I am willing to give up a little freedom to gain a little security. but I try to understand the actual problem, not boogy man it.

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  22. Seattle Outcast

    Once again we see that the police are becoming, if not already there, nothing more than a tax-funded criminal gang.

    Must really suck to be one of the honest cops.

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  23. HARLEY

    and when they step over the line and violate those rules, we as citizens have recourse

    Except when they codify these violations into law? Like the restrictions and laws against filming a police officer?
    That is another issue i know, but a clear violation of trust and law,but the seem to be getting away with it.

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  24. richtaylor365

    I think I know about what you are referring to, let me just say that you should not assume that they are “getting away with it”. I bet that most of those guys get disciplined.

    A couple things, I’m not here to justify bad behavior by the police, if I had my way, all the bad apples would get fired, they make it harder for the good cops to do their job. I stepped into this thread because I felt there was some gross mis characterizations being posited about this court opinion. The controversies that followed was of their own making, and more care should of gone into explaining what it does not do.

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  25. Manwhore

    I think I know about what you are referring to, let me just say that you should not assume that they are “getting away with it”. I bet that most of those guys get disciplined.

    Heh. You are right. They are not getting away with it, vigilant “citizens” are there documenting bad behavior everyday and we are all witness to how these cops are dragged through courts already sympathetic to them and defended by unions..no matter the consequences.

    Basically, and again, there are now a clear set of rules for the police and for the public. They favor the usual suspects.

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  26. AlexInCT

    Rich I pretty much think you are very level headed and smart, but I while I do not disagree with your interpretation of this ruling, I seriously do with what it will result in. It has been my experience that the legal system isn’t our friend, and in way too many cases, neither is the police. This will get abused. We are talking about a home here. When the homeowner tells the state to f-off, that’s their perogative. The state has a means to legally get into the home. If they can’t be bothered with that, then sooner than later we are going to see them just ignore it completely.

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  27. richtaylor365

    Alex, I knew when I stepped into this thread that I was going to be pretty much alone on this, like a salmon swimming up stream, but I felt an obligation to speak up because not only have I been on both sides of the track, but erroneous allegations were being made about this turning into massive loss of freedoms. As I told Harley, I don’t want to be put into a position of defending bad cops because I am probably more critical of them then you guys, but I’ll do my best to ally your fears:

    It has been my experience that the legal system isn’t our friend, and in way too many cases, neither is the police.

    But this is the legal system we have in place now, this is the system that not only the citizens have put in place but has power over of us. To fight something over our own making, that which we have given permission to police us, is counter productive. As citizens it is our duty and obligation to watch over this legal system, to police those that are doing the policing, and report abuses. Aside from changing the entire system and starting from scratch, what else can we do?

    The state has a means to legally get into the home.

    No, they don’t, remember what the court actually said:

    We hold that there is no right to reasonably resist unlawful entry by police officers.

    They are not saying that what was once unlawful is now lawful, this is were everyone was going off half cocked, that entry is still unlawful, which means they are doing something bad and can be punished for it, do you see the distinction? This sort of police misconduct, illegally entering a private residence, is still considered abuse and unlawful, nothing is changed.

    then sooner than later we are going to see them just ignore it completely.

    The only ones that will be ignoring it are those that do not value their jobs and are inviting legal action taken against both them and their department.

    Having worked 3 years in internal affairs, much of that with the state AG’s office in assessing and paying out claims to citizens that were wronged by police misconduct, the system does work. And today with everyone and their mother carrying cells phones with video capturing devices, stepping outside of policy gets even harder.

    I understand the feeling of not trusting the government,
    I don’t trust them either, but their worst nightmare is a well informed and always watchful citizenry, me, I never let them out of my sight.

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