The Indiana Supreme Court handed down a controversial decision (pdf) last week that said that Indiana would no longer recognize the common law right to resist unlawful entry by police officers.
At common law, a person had the right to resist, using reasonable force, the unlawful entry of police into one’s home. The Indiana Supreme Court decided, in effect, times have changed since the old days, and the costs outweigh the benefits in our modern times. In the bad old days, the king’s men could abduct you, hold you indefinitely, and torture you. And, if you did get out of the dungeon, you had no recourse against the king. Today, you have a right to bail, speedy trial, a probable cause hearing, etc., and you can sue the government for false imprisonment and other violations. With those protections, the dangers are reduced, and make the dangers on that side of the scale less than the dangers you get when you allow people in tense situations to make snap legal decisions about whether police action is lawful and use force to resist the police.
Not mentioned in this decision, but quite possibly on the judges’ minds, was the prospect of everyone who used force against the police making up some unlawful entry story in retrospect and making violence against the police a more viable alternative for criminals.
Philosophically, I’m uneasy about this case. As a practical matter, under the facts of this case, I’m not too troubled. I think I would have preferred that the court use language to allow resistance in egregious cases, but not under close calls like this one. Justice Dickson and Justice Rucker’s dissents urge something like this course.
The police apparently got called to the apartment to respond to domestic violence in process. Husband was throwing stuff around the apartment and had apparently ripped a phone out of Wife’s hands and thrown it against the wall. When the police got there, Husband & Wife met the police in the parking lot. Police followed them back to the apartment, Husband barred entry while Wife said things like “just let them in.” Police tried to force their way, and Husband resisted physically.
The majority almost certainly could have issue a narrower rationale for telling Husband he wasn’t allowed to do what he did.
I guess the real problem is that the right to seek redress of these grievances is under attack. When prosecutors and police are immune from civil actions for even intentional violations of the law, and arbitrary rules prevent victims of judicial malpractice from receiving compensation.
In addition, there’s the practice of legalized theft – aka asset forfeiture.
In the context of all this, it’s hard to say that subsequent legal actions can ever make the victims of illegal entry whole.
I was quite troubled a few decades ago, when I was involved in some federal civil rights cases involving police brutality, to see how the law was headed. It became the law in Indiana that one had no right to resist excessive force by police. The theory, as last week, was that your remedy would come later in a civil rights suit.
This bothered me because one of my cases was a deliberately humiliating pistol-whipping, in broad daylight, downtown small town, and while the case was on appeal (after a gratifying jury verdict), the U.S. Supreme Court ruled that you could not collect substantial damages for a bare violation of civil rights without proving special damages.
So a guy who gets humiliated by a pistol-whipping but plays the stoic, seeing no psychiatrist but seeking legal redress instead, gets – $1 nominal damages plus “reasonable attorney fees.” That described my guy. The punk policeman’s behavior was outrageous, but my guy sucked it up and had no specific bills to point at. We settled for a heckuva lot less than the jury had awarded initially.
How many people will go through a lawsuit just so the lawyer can get paid and he or she can get vindicated with a $1 bill for a poultice? For that matter, for how much longer would the federal courts consider $25,000 (or whatever the ethical rules otherwise would say was reasonable considering all the factors) a “reasonable” fee to purse $1 plus vindication for a client?
I tend to agree with BrianK, too.
I’m thinking about this issue in conjunction with my recent jury trial where, in my opinion, the jury’s award against our co-defendant was well beyond anything supported by the evidence. I’m willing to go along with the proposition that the legal system isn’t a very good system for redressing wrongs. However, so long as government has a monopoly on violence, it’s the only game in town. (Folks might try alternate dispute resolution of various kinds, but at the end of the day, the only way to extract money from or enforce an injunction against an unwilling party is through the use of force at some level.) The alternative, where violence is left in the hands of private parties is even worse. Might makes right, blood feuds, and all of that.
So, you have the legal system and its imperfect decision making. There is an allocation of risks associated with that imperfect (and sometimes even bad) decision making. In vanilla civil suits, the risks are allocated pretty evenly. In civil suits against the government, the risks are allocated more heavily against the claimant.
That’s my thought after about 5 minutes of consideration anyway.
The most annoying thing about this was how they worded the ruling.
Depending on which story you read, and how the events are depicted, they MAY have had probable cause to enter the home without a warrant, but based on the published version of events, it doesn’t sound like it. At that point, if the guy was dumb enough to get physical, he deserved to be tased. BUT from the sound of it they did not. Having a disagreement that involves throwing things is a normal Friday night for a lot of people, if they didn’t seriously believe the man was going to endanger his wife, then they can’t really beef up him getting mouthy into them having cause to enter without a warrant, and them FORCING the issue by stopping the guy from being able to close the door, well that’s just a jerk move on the officers’ part. Let the door slam and keep things civil. don’t be a dumbass and provoke a response by getting physical FIRST, even if its with the door. (again, this is going off of the version of events that i read, things may have been depicted differently in different sources, or may have gone down a different way altogether.)
Whats WORSE about this, is the wording of the decision:
“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.”
They didn’t term it “forcefully resist”. They made no distinction at all. And does anybody want to tell me what “modern Fourth Amendment” is? I’m far from a strict constitutionalist, but the 4th amendment is built to protect against such situations where without cause, or with made up cause, an officer enters a residence. These Amendments should error on the side of the PEOPLE. Not agents of the State. And the courts are supposed to be the ones handling these edge cases and making rulings that protect the populace, not nullifying them. But instead, they opened the door to a deputy being able to walk into my home, without cause, warrant, or anything other than something passing through his mind.
In the bad old days, the king’s men were far more polite than today’s pigs.
We’re at a historically low point with the thug armies that are our police.
We’re all freer when illegally invading cops are repulsed with a freeman’s gun barrel.
Suffice it to say that doesn’t comport with any history I’ve ever read. Maybe some Arthurian fantasy but not history.
What’s the mechanism for impeaching sitting Supreme Court justices?
Parker, they’re put on a ballot 4 years after being nominated with the question of to retain them or not.
“Braveheart” doesn’t count as history, Doug.
“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.”
William Pitt the Elder
We’re now in worse shape than the Colonists.
Matt –
Thanks for the information – is there a way, though, to get rid of them NOW?
I don’t really need any other indication of their complete unfitness for any public office – down to and including dog catcher.
While in the case cited, there was no question they had the right to enter.
But, this sounds like the Court gave the Gerstapo(oops! Police) the sole discretion to enter for whatever reason they feel like. The State Police have
been a little out of control in recent months; this will just encourage them
even more. This is supposed to reduce violence, according to them. What
it’s going to do is get cops killed and homeowners too. The idiot “Justice”
who wrote this opinion was a Mitch Daniels appointee; and this jerk wants
our support for President??!!?? Take away another one of my rights and
THEN ask for my vote……
I’m waiting for all the right-wingers to start screaming about judicial activism and how we need to get good conservative judges on the bench in Indiana to stop this nonsense …… oh ……. wait. Nevermind …..
One thing I think is worth considering is, what is the utility of resisting police entry? Under what circumstances do we envision that ending well for the homeowner? If the officer at the scene decides he wants to enter, and the homeowner resists, the officer isn’t just going to say, “well, I guess I’ll go back to Dunkin Donuts then.” He’s going to call for back up, and he will enter.
So I think pushing the proper place for dispute resolution to the courts is entirely appropriate, regardless of whether or not the courts are an imperfect vehicle. Resisting on the scene is simply *not* a vehicle.
My first reaction to the ruling was that it was absolute crap. However, I have thought about it more, and I second Jim’s comment that resisting is always (right or wrong) going to end badly for the homeowner. So, let’s not suggest that they do it.
I also wonder how cops would feel if we told others that they can defend their home against illegal police invasion. Not many people actually know when a search is illegal or not, so what would most likely happen is that we would get 10 resisted legal searches for every one illegal search prevented (or attempted to be prevented).
I expect the main practical result of this is that defendants who hassled cops, not out of some principled opposition, but because they were being belligerent assholes won’t spend as much time after they’re charged trying to retcon their actions from belligerence into deeply held beliefs about the Constitution.
I think Paul C. Was touching on this: how is the homeowner in a position to evaluate the legality of the search from an evidentiary standpoint? I don’t recall the 4th stating that the state must give the homeowner the evidence for probable cause prior to the search. It just has to exist, and then can be evaluated and adjudicated later.
Practically speaking, allowing home defense against a police force will have multiples more bad outcomes than good outcomes. We have a system for dealing with agents of the state when they step over the line, so it seems to be inviting bad outcomes for omapparent purpose.
Dear Readers,
I resisted unlawful entry into my home 10 months ago when my soon to be ex-wife called 911 and stated I had threatend her and was armed! I did not know this when I saw the sheriff racing down my very long drive way. I locked all my doors and had just enough time to answer my side door to a hugh Lt. and his female officer who demanded entry into my home. I politely refused and asked them what the problem was. The Lt started yelling his demands over and over “Let me in right now this is a 911 call.” I told him that he was not comming into my home but I would be glad to get my wife for him. This only made him act more irate. I then found myself spending time asking him to calm down because his behavior was not right and he would have to get a supervisor on scene if he couldn’t calm himself. I was speaking very softly and slowly as not to freak him out any more than he already was.
So with that done I head upstair to get my wife but she was no where to be found for as you see, while the very smart Lt had my attention, my wife had walked down the stairs <which the Lt could see the whole time and had openned the back door and let the officers enter my home. As I was comming down the stairs the Lt was comming up the stairs and I sat down on the first step that my foot hit when a saw the Lt eye to eye. He then spent 5 minutes cursing me out in my home for not letting him in immediately. I am glad that a Lt was training a young officer that day even if he abused his authority. I will always believe that my wife wanted the police to kill me in my home that day 10 months ago. Death by Cop. The perfect crime.
Thank you for your time
Sidney,
I am sorry you went through a tough situation. I don’t think it is relevant to the discussion, however.
It doesn’t sound like unlawful entry. Once your wife called 911 and indicated she was an occupant of that location and there was an emergency, their entry was lawful.
Furthermore, your example of someone providing the police with false information strengthens the case to not allow resistance. The police were acting in good faith on the information they had. The fact that they thought you were armed and you were not is a good example of why resistance is a bad idea. You can’t sue for unlawful entry if you are dead.
Why must resisting “end badly” for the homeowner? Why can these dogs not back off and return at a proper time with proper credentials? Why do we tolerate and pay for a group of thugs with unrestrained egos?
Unfortunately, these “dogs” believe they are doing a public service, and helping catch a bad guy. If so, any delay could mean the opportunity for evidence to be destroyed. If these “dogs” thought they were “barking” up the wrong metaphorical tree, they probably wouldn’t be wasting their time in the matter. Same goes if they believe the entry is legal, and the homeowner disagrees. While cops are not lawyers, I predict the cop would be correct 9 out of 10 times vs. a layman homeowner.
Personally, I also disagree with characterizing law enforcement officers as “dogs” and “thugs”, as most of them are upstanding officers intent on helping the public.