fourth amendment, where'd you go?

[Ns1]

DIANAPOLIS | 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.

I'm speechless.

 

[Fern]

I'm speechless.

Me too (almost).

That's probably the most absurd ruling I've ever heard of.

Fern

 

[Jaskalas]

Best part is the little footnote at the bottom.

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.

Works great with a clause that you cannot resist. Point being, if you suddenly find armed / masked men storming your house it is illegal for you to do anything but outright surrender to them.

The real question is if they're actually police or not, but that's not for them to tell you, or for you to decide. Government property does not speak unless spoken too.

 

[DucatiMonster696]

Come on guys the Constitution is a ever changing "living and breathing" document.

Seriously this needs to head to the USSC and hopefully the rights of individuals trumps the right of government to kick in your door without a warrant or reasonable cause (aka...someone screaming bloody murder).

 

[gevorg]

This is an isolated incident that does not represent the average police officer who loves and sincerely protects your family. Fourth amendment stays intact, so move along, nothing to see here.

 

[waggy]

damn i hope someone fights this. thats just fucked up.

 

[shortylickens]

Sad as it makes me, there is plenty of precedent to back up that decision (not that I agree with it).
Its been accepted for a long time now that cops can do whatever they want, legal or illegal, and you are required by law to stand by and just watch it happen.
If you got a problem, go through the proper channels and see that the misdeed is corrected. There are plenty of folks who sue their police departments and win.
But the notion that a cop on the scene can do pretty much whatever he wants and then explain himself later is hardly a new idea.

MY beef is how that precedent got established to begin with, given its obvious unconstitutionality. But its pretty common now and unlikely a supreme court ruling would ever actually fix anything.

Also, you cant record their actions with any device even when they are in uniform, outside, and working in the line of duty, which makes me wonder just how shady cops need to be in their day to day activities that they cant be held accountable for it.

 

[CrackRabbit]

This is an isolated incident that does not represent the average police officer who loves and sincerely protects your family. Fourth amendment stays intact, so move along, nothing to see here.

You know how I know you are trollin'?

 

[woolfe9999]

Come on guys the Constitution is a ever changing "living and breathing" document.

Seriously this needs to head to the USSC and hopefully the rights of individuals trumps the right of government to kick in your door without a warrant or reasonable cause (aka...someone screaming bloody murder).

Given your maligning of the "living and breathing" Constitution idea, I assume you are a self-styled "strict constructionist" of the Constitution. So let's apply that standard here. Where in the Constitution does it say that the remedy for an unreasonable search or seizure is self-help on the part of the citizen? It must be in there somewhere right?

http://www.usconstitution.net/const.html

For that matter, where does the Constitution specify any remedy whatsoever for violating any of the rights it sets forth? How about the exclusion of evidence as fruit of the poisonous tree? Oops, looks like the FF's left the question of approriate remedies to legislators and judges. Really sucks to be a strict constructionist when the Constitution doesn't say what you want it to say, doesn't it?

 

[Fern]

Based on the the judge's remark in the opinion below I'd say DucatiMonster696 has a point.

"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.

So we have a right against unreasonable search but not illegal search? That's fugggin unbelievable.

Fern

 

[Lemon law]

My guess is that the first time its tested in SCOTUS, Indiana will get get a giant dope slap.

But why wait for an actual appeal, the Justice department may file a court brief ahead of any actual court case.

Gotta agree with Fern, its just about the most absurd court ruling I ever heard.

 

[woolfe9999]

Based on the the judge's remark in the opinion below I'd say DucatiMonster696 has a point.



So we have a right against unreasonable search but not illegal search? That's fugggin unbelievable.

Fern

Then perhaps I'm confused as to whether DucatiMonster696 supports the notion of a "living breathing Constitution" or opposes it, because it seems that the justices who think people should be able to physically resist the intrustions are of the "living breathing" school here, not the other way around...

- wolf

 

[Fern]

Then perhaps I'm confused as to whether DucatiMonster696 supports the notion of a "living breathing Constitution" or opposes it, because it seems that the justices who think people should be able to physically resist the intrustions are of the "living breathing" school here, not the other way around...

- wolf

How so?

We clearly have a right against unreasonable searches, and no where in the Constitution are we prohibted from resisting it. I see no where in the Constitution where we are prohibited from protecting any of our own rights.

In a broader sense this ruling seems to criminalize a person's attempt to protect their constitutional rights and do not see how that could be possibly be interpreted as strict constructionalism.

I'd look to the 10th and 14th amendments in this issue. (I added the 14th which I believe would prevent the states making a law violating our rights)

Fern

 

[woolfe9999]

How so?

We clearly have a right against unreasonable searches, and no where in the Constitution are we prohibted from resisting it. I see no where in the Constitution where we are prohibited from protecting any of our own rights.

In a broader sense this ruling seems to criminalize a person's attempt to protect their constitutional rights and do not see how that could be possibly be interpreted as strict constructionalism.

I'd look to the 10th and 14th amendments in this issue. (I added the 14th which I believe would prevent the states making a law violating our rights)

Fern

Nowhere in the Constitution are you prohibited OR permitted to physically resist. The Constitution is silent on the issue, as it is with every possible remedy for violations of the 4th Amendment. Hence, it is for legislators and courts to decide, UNLESS you subscribe to the notion of reading things into the Constitution that aren't there. Note how this argument has been framed: not that disallowing this is merely wrong, but that it violates the 4th Amendment. Does it really? Which part?

- wolf

 

[NoStateofMind]

Nowhere in the Constitution are you prohibited OR permitted to physically resist. The Constitution is silent on the issue, as it is with every possible remedy for violations of the 4th Amendment. Hence, it is for legislators and courts to decide, UNLESS you subscribe to the notion of reading things into the Constitution that aren't there. Note how this argument has been framed: not that disallowing this is merely wrong, but that it violates the 4th Amendment. Does it really? Which part?

- wolf

Would you agree that someone searching your home without your permission to be illegal?

EDIT: NVM brain fart. I see what you are saying now. However hasn't it been the custom to obtain first a search warrant? IMO I think a strong case for protecting your home from no warrant searches could be made being that the founders dealt with this kind of abuse before the revolution.

 

[OCGuy]

Can't say I would feel bad for anyone who gets shot entering a home without identifying themselves...in some states that is almost suicide.

 

[Bateluer]

WTF. Where'd the judge get their law degree from? Hollywood Upstairs Law School?

 

[Nintendesert]

You know it's a really shitty ruling when damn near most of the P&N crowd agrees that it's a shitty ruling.

 

[RedChief]

My guess is that the first time its tested in SCOTUS, Indiana will get get a giant dope slap.

But why wait for an actual appeal, the Justice department may file a court brief ahead of any actual court case.

Gotta agree with Fern, its just about the most absurd court ruling I ever heard.

You really think that the current Justice Department will want to overturn a ruling that can expand its powers?

 

[Schadenfroh]

No warrant, no entry
Unauthorized entry without warrant = assumed home invader wearing police costume

 

[shortylickens]

No warrant, no entry
Unauthorized entry without warrant = assumed home invader wearing police costume

I really dont wanna go to jail as a cop killer.
On the other hand, if I were a rapist I should think wearing a uniform would be the perfect method to get in without resistance.

 

[Jaskalas]

Can't say I would feel bad for anyone who gets shot entering a home without identifying themselves...in some states that is almost suicide.

Against officers, given how many of them there are, its suicide for the home owner.

 

[DominionSeraph]

Nowhere in the Constitution are you prohibited OR permitted to physically resist. The Constitution is silent on the issue, as it is with every possible remedy for violations of the 4th Amendment.

This. The statement that you have a right does not give you carte blanche to kill anyone who infringes in the slightest degree.
We are dealing with subjective perception on both sides. Neither the civilian nor the officer are given supreme ruling authority as to what the law does or does not say. The US Supreme Court gets the final say. So it is unsurprising that limitations are placed on both sides that move the decision to the realm of the courts.

Allowing the police to lose in the honest fulfillment of their duties would undermine the entire legal system. You must give them some wiggle room as an ideal as they never have surety as fact that they are covered. Judges are human -- they make mistakes and their decisions can be greatly influenced by moods. If you do not color them slightly towards giving the police the benefit of the doubt, the core functionality of the police is crippled.

Humans are emotional beings. If you do not allow them to proceed in daily life emotionally, they get bitchy.
Setting a rule that makes the civilian restrain his emotional perception once is better than setting one that places the burden on the police of restraining it all the time. The civilian is protected if his emotional perception turns out to be valid, so that doesn't rate anywhere near if the entire police force decides to up and give a middle finger to the legal system. If the police decide to let the system fail because it's too restrictive on them, you can't fix it while maintaining the restrictiveness. You may be able to put a band-aid on it by quadrupling their salaries, but the underlying moodiness will still be there.


Conservatives have a sense of absolute entitlement and always want to be completely unleashed dogs. Sorry, but sometimes the reality of society requires you to place some leash on yourself so as to allow for other people's doggyness.
You are not the center of the universe. The burden is not placed on solely on everyone else to accommodate you. You have to accommodate others as well.
Such is just the way of reality. If you have a problem with it, take it up with your god. Ask him why he didn't actually make you the center of the universe and demand that he change it because, as the proper center of the universe, even your god should revolve around you. Amiright?

 

[OCGuy]

Against officers, given how many of them there are, its suicide for the home owner.

You mean like when they killed that black grandmother?


I don't think I would want to be the first one through the door on a no-knock warrant in a community with high gun ownership.

 

[shortylickens]

Against officers, given how many of them there are, its suicide for the home owner.

And after the dust settles, every cop in that state would find his record cleaned with a fine-tooth comb and a LOT more policies restricting how they do their job.