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.