Fourth Amendment

No Right to Resist Rogue Cops in Indiana

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On Monday Damon Root noted an 8-to-1 decision in which the U.S. Supreme Court said police may force their way into a home if they smell burning marijuana and hear what they think is the sound of contraband being destroyed after they knock on the door. Last week the Indiana Supreme Court said, in effect, that police may force their way into a home for any reason or no reason at all. Although the victim of an unlawful search can challenge it in court after the fact, three of the five justices agreed, "there is no right to reasonably resist unlawful entry by police officers." They thereby nullified a principle of common law that is centuries old and arguably dates back to the Magna Carta.

The case stemmed from a domestic dispute:

Richard Barnes argued with his wife Mary Barnes as he was moving out of their apartment. During the argument, Mary tried to call her sister but Barnes grabbed the phone from her hand and threw it against the wall. Mary called 911 from her cell phone and informed the dispatcher that Barnes was throwing things around the apartment but that he had not struck her. The 911 dispatch went out as a "domestic violence in progress."

The first officer on the scene encountered Richard Barnes outside the apartment. Barnes said he was leaving and the police were not needed, but he was "very agitated and was yelling." Mary Barnes came out to the parking lot, threw a duffle bag in her husband's direction, and told him to collect the rest of his belongings and go. He followed her back into the apartment, whereupon two officers tried to enter and he blocked the way. Although "Mary did not explicitly invite the officers in," she "told Barnes several times 'don't do this' and 'just let them in.'" When one officer tried to enter the apartment, "Barnes shoved him against the wall" and "a struggle ensued." The officers "used a choke hold and a taser to subdue and arrest Barnes," who "suffered an adverse reaction to the taser and was taken to the hospital."

Barnes was convicted of battery on a police officer, resisting law enforcement, and disorderly conduct. He appealed his convictions on the grounds that the jury should have been instructed about "the right of a citizen to reasonably resist unlawful entry into the citizen's home." The Indiana Supreme Court, however, concluded that "public policy disfavors any such right," since "resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."

Dissenting Justice Brent Dickson argued that "the wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad." Given the circumstances of Barnes's arrest, he said, the court could have ruled that "a person's resistance to police entry in the course of investigating reports of domestic violence" does not qualify as "reasonable." The other dissenting justice, Robert Rucker, argued that the right of reasonable resistance is grounded in the Fourth Amendment as well as common law.

Unless I'm missing something, the court need not have addressed this issue at all. It could simply have ruled that the officers' entry into the apartment was lawful in light of the exigent circumstances created by the domestic dispute and the possibility of violence, especially since Mary Barnes had called 911 and arguably invited them in. The majority suggested as much but inexplicably decided the much broader question of whether Richard Barnes would have been entitled to resist if the entry had been illegal. "Because we decline to recognize the right to reasonably resist an unlawful police entry," the majority said, "we need not decide the legality of the officers' entry into Barnes's apartment."

That seems backward to me, and it suggests a hankering to repudiate a principle that strikes the justices as an outmoded impediment to law enforcement but strikes me as a straightforward extension of the fundamental right to self-defense. According to the court's reasoning, a homeowner would not even have a right to defend himself against rogue police officers who robbed people under the cover of official business. Indeed, the concern about escalating violence would count against the right to defend yourself against anyone, with or without a badge.

The full text of the decision is here (PDF).

[Thanks to David Harsanyi for the tip.]

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  1. So much for the notion that the 2nd amendment is for protection from government tyranny.

    1. That’s exactly what the second amendment is for. This ruling shows why it’s necessary.

      -jcr

      1. Good luck with that.

    2. And what’s this Magna Carta b.s.?

      Sounds furreign to me.

      1. Forget it; it’s just some old piece of paper that’s probably irrelevant.

        1. Completely irrelevant, like, a century old and stuff.

          1. The Magna Carta is not a suicide pact!

        2. It’s just a goddamned piece of paper!

      2. It’s like 100 years old and nobody can really know what it means today. I mean, it’s like written in some kind of foreign language or something. It’s really hard to understand.

  2. I’m told that the “justice” who wrote the majority opinion is one of the military shysters who spend the Bush administration inventing asinine rationalizations for holding prisoners without trial indefinitely, even after the supreme court explicitly told us it was illegal to do so.

    What I want to know, is why a man with such obvious contempt for the rule of law and the constitution was ever admitted to the bar, let alone appointed as a judge.

    -jcr

    1. “What I want to know, is why a man with such obvious contempt for the rule of law and the constitution was ever admitted to the bar, let alone appointed as a judge.”

      To ask is to answer.

  3. “there is no right to reasonably resist unlawful entry by police officers.”

    That is absolute mindfucking cognitive dissonance.

    1. Yup. I’d have thought the Declaration of Independence plus the black-letter text of the bill of rights pretty much guarantees me the right to resist unlawful actions by agents of the state with any force necessary. Depending on your reading of the Declaration, it may require that of me.

      1. What part of “unlawful” do they not understand?

        1. unlawful:lawful::inflammable:flammable?

        2. unlawful? is that like inflammable?

      2. THIRSTY

        1. PREGNANT

          1. LIE!

  4. Police state, here we come!

    Wait, we’re already there. Police state, here we are!

      1. Every. Time.

        1. SOMALIA1!!111!one!

          1. yes!

      2. OO is writing about something called “somolia”. Not sure what that is. Maybe some kind of medical sleep aid?

        1. Somolalia: talking in your sleep?

    1. No matter where you go, there you are.

  5. Perhaps applying for a law enforcement job is becoming more like Heddly Lamar hiring bandits to raid Rockridge.

    1. We’ll work up a Number 6 on ’em.

    2. *looks at filled out application to the police academy*
      Under interests you listed “rape” twice.

    3. That’s where you get to rape the shit out of the women folk at the Number 6 dance later on, right? Maybe Dominique Strauss-Kahn will be there.

    4. Anyone want to come help me install a toll booth in my driveway?

  6. “Public Policy” FTW!

    1. Is that like the Pubic Policy the TSA follows?

    2. “public policy disfavors any such right,”

      Hey, I guess we rubes are too uneducated and lacking in credentials to understand that public policy trumps the Constitution.

      1. Hey, this works for anything:
        “Public policy” disfavors allowing Free Speech.
        “Public policy” disfavors allowing freedom of religion.
        “Public policy” disfavors allowing (anything you don’t like).

        1. I’m glad someone else jumped on this line. The federal supreme court has been using this justification for years and it is exceedingly dangerous.

          “Public Policy” is just another term for “in my opinion it is better this way”. What is the point of bothering to write down a constitution if “public policy” can carve out exceptions by fiat?

          Citizens United was an excellent example of this. The 1st amendment clearly exists primarily to protect political speech (the only kind that the government truly has incentive to censor), yet 4 of 9 ruled that a law that only restricts political speech is constitutional because of the public policy benefits.

      2. As long as they follow the policies and procedures, they can unlawfully do anything they want.

  7. Thank you very much, Obama’s Drug Policy.

    1. it was a domestic violence call sherlock

  8. 2 down. 8 to go.

  9. RIP, US Constitution. It was fun while it lasted.

  10. What I don’t understand is why we don’t turn our nuclear arsenal on ourselves. Since anything is justifiable in the War on Drugs, nuking the country is the only way to be sure that drugs won’t be used here.

    1. We have nuke the site from orbit though … thus, we’ve got to build an orbiting platform to do so before we can undertake such an effort.

      1. Look, this is serious business, eradicating drug users. Not time for movie-inspired refinements.

      2. Perfect! Think of all the jobs that will be created!(TM)

  11. State lawmakers weigh anti-piracy bill to allow warrantless searches of CD and DVD makers

    http://www.latimes.com/busines…..1223.story

    The Recording Industry Assn. of America is pushing the legislation, which wants to give law enforcement officials the power to enter manufacturing plants without notice or court orders. But U.S. constitutional law scholars say the proposal may violate the 4th Amendment.

    1. Nuking America would also stop copyright infringement. Well, at least in America. Maybe we should nuke the whole world. And any other planets that may have received signals containing copyrighted content.

      1. The movie Contact showed how TV signals are just radiating outward from Earth. A lot of that is copyrighted material. When the aliens finally make first contact let’s hope they haven’t recorded any of that material.

        1. Or–I shudder at the thought–distributed or made derivative works of it.

    2. Sadly,given enough time,money and influence any law, even the constitution, can be trumped.

    3. Not really surprised. The left has consistently held that the 4th amendment (and the 1st amendment) should NOT apply to the corporations they hate so much. They cringe at the idea of warrantless wiretaps for suspected terrorist, but cheer the idea of a permanent wiretap on Exxon Mobil to search for price fixing or collusion.

  12. I’d like to propose that politicians have no right to resist rogue voters/citizens who engage in unlawful actions. That’s only fair, right?

    1. So I can put you down in favor of the tar and feathering amendment?

  13. Depending on state law. I think the problem is the way domestic abuse is handled. It one of the few areas where cops can arrest you without the abuser filing charges. Some will argue, with the domestic abuse laws as they are, the cops entry was not unlawful.

    1. Which public are they talking about? Public employees?

    2. The legality of the entry isn’t in dispute. In fact, the IN supremes went right past that question straight to point of this story–that the citizens of IN may not lawfully resist the unlawful entry into their home by law enforcement.

      The next logical evolution of this logic is as follows: You really shouldn’t have a gun in your house, you know, because a gun (other than those carried by police, of course) really increases the chances someone might be seriously injured or killed should a cop illegally enter your home.

      1. Just to clarify, everyone agreed that the entry was unlawful, right? Because otherwise he would have been resisting a lawful entrance which is clearly illegal.

  14. The Indiana Supreme Court, however, concluded that “public policy disfavors any such right,”

    RESISTANCE IS FUTILE

  15. I’m glad to report that here in Texas, you have an undisputed right to defend yourself against a cop acting unlawfully.

    The sad thing is that I would be willing to bet real money that a bill trying to restore this right to Indiana citizens wouldn’t pass.

    1. Yup. It’s explicitly stated in the use of force laws.

    2. Yeah, and try getting a court to agree with you that the cop was acting unlawfully. Remember…the number of people sent to death row is an election boosting stat here.

      1. Prison rodeos and electric bleachers. Yeehaw.

  16. inexplicably decided the much broader question of whether Richard Barnes would have been entitled to resist if the entry had been illegal.

    Inexplicable? It’s as if they had been waiting for an opportunity to excrete this opinion.

  17. So now if a police officer decides to break into your house and rob you, you have no legal right to resist. Nice. I wonder if the bad guys in Indiana are smart enough to pick up on this and start dressing up as police when they want to do a home invasion robbery.

    1. I’m sure they are.

    2. You can tell they’re not real cops if they don’t shoot your dog.

    3. And since the basis for the ruling was that resistance escalates violence, it would seem that there is no right to resistance against any dangerous criminal.

      1. Depends on how you resist. I can think of ways that would de-escalate the violence right quick.

    4. That, of course, is the defense. How can you tell whether they are real cops or not? If they’re just rushing in, then you don’t get an opportunity to see and evaluate their credentials.

      If they simply must circumvent constitutional limits, then they take their lives in their own hands.

      1. Tell that to Cory Maye.

        1. Well, best not to be a minority while exercising your civil liberties against cops, I suppose.

          1. Is there a case where a non-minority was allowed defend themself?

    5. The bad guys do this every day, in every major city, and have been for years, because you were already going to fry if you opened fire on uniformed personnel bursting in to your home unannounced with no warrant.

    6. In other words, all these judges did was codify the status quo. The unforgivable part is how clear it is, to anyone who is looking, how impossible it is to get justice when cops act badly.

    7. Sure they are: http://www.southbendtribune.co…..5087.story

      1. Are you sure they weren’t really police? Sounds like what a lot of departments do when serving a drug warrant.

  18. The Indiana Supreme Court, however, concluded that “public policy disfavors any such right,” since “resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

    Wouldn’t the exact same reasoning justify the elimination of the right to self defense against any unlawful agent, police or civilian?

    1. That’s the next step.

    2. Thus we create the dumbest aristocratic class in the history of dumb aristocratic classes.

    3. Police in some places will tell you with a straight face that if somebody is breaking into your house it is illegal to defend yourself and that you should call them.

      1. Honest people need not apply.

    4. Or you could turn it around and say unlawful entry unnecessarily escalates the level of violence. But nah.

  19. Officer Barbie: “Making up ‘exigent circumstances’ after the fact is hard.”

  20. “there is no right to reasonably resist unlawful entry by police officers.”

    I think every political philosopher I ever read, even the moral skeptic Hobbes, argued that defending oneself was a fundamental right of every human being.

    I really don’t think these stupid fucks on this court see the ramifications of their actions. If pigs can do whatever they want like rob you or beat you and there is absolutely no recourse to the law, what options are there for us mere citizens? If the only options are me being dead, or the cop being dead (while I am in prison), some are going to choose to shoot the pigs.

    1. I think the court is trying to make a distinction that defending one’s property isn’t self-defense. The police can come in and rob you and you can’t stop them unless they beat on you, too.

  21. Let’s hope they don’t try to appeal to the supremes and establish this as the law of the land.

  22. “The Indiana Supreme Court, however, concluded that ‘public policy disfavors any such right,’…”

    Silly me, I didn’t think it was the duty of the court to create public policy. Centuries of law respects the right to resist unlawful entry, but hey if some justice thinks it’s bad policy then out it goes!

  23. This certainly slams the door on any attempts to punish police in wrong door raids.

  24. Some female writers really love a good tantrum when a male writer wins something or is widely praised …

    http://www.guardian.co.uk/book…..oth-booker

    1. She may be a female writer, but that has no bearing. The important part is that she’s a noted feminist.

  25. Rule of law means that there is a supreme law by which all other law is judged, and the role of the judge is to do exactly that.

    Rule of man means that legislation is the law because it exists, and the role of the judge is to defend that legislation and the men with guns who enforce it from those who support rule of law.

  26. Resistance is not futile. It is time for us to engage in mass civil disobedience, starting by moving away from cities that have corrupt police and moving toward an organized movement to stop paying taxes for this type of “protection.”

    1. Does such a place exist? The number of clean cops in America can dance on the head of a pin.

      1. New Hampshire.

  27. Is there a right to resist rouge cops?

    1. Nope. Not in Indiana.

    2. If they’re painted red?

      No.

      But if they’re acting on their own, outside of a system of rules (i.e., rogue), sure!

  28. What a puke inducing opinion.

  29. There’s a SCOTUS case from awhile back that managed to mix up the issues of whether an arrest was lawful and whether resistance to unlawful police activity was protected under the 4A. I’m pretty sure they got the 4A decision right, but my vague recollection is that the opinion was a godawful mess.

    1. So RC. I don’t hate all lawyers, but explain how someone “smart” enough to complete an undergraduate degree and then a law degree can come up with “there is no right to reasonably resist unlawful entry by police officers”.

      Is there a secret program where trial lawyer and/or new judges undergo lobotamy or something or other?

      1. Since you put smart in scare quotes, I think you know the answer to this.

        1. I know that “foolish” people can make it through an engineering degree, but never the “dumb” people. I always assumed that a law degree required enough work to filter out the “dumb” people, and yet I cannot fathom how some decisions get made by judges — it seems as though “dumb” must be a recurring problem that requires constant weeding. Once you’re immune to weeding the dumb becomes very strong in some people.

          1. You don’t have to be born stupid, you can be born smart and become stupid as you age.

          2. It’s hard to make it through life being totally full of shit without being fairly smart.

  30. Well, as wrong as the ruling might be, it’s only Indiana.

    Who wants to live in Indiana anyway? And what is a Hoosier?

    1. The decision may only be in Indiana, but the logic (‘public policy favors..) is in wide use in the judiciary, all the way to the supreme court.

      Today, we are all from Indiana. Ich bin ein Hoosier.

  31. The RIAA argued that courts had carved out 4th Amendment exceptions already. So far, it said, warrantless searches have been allowed at such businesses as automobile junkyards and repair shops, mines, gun and liquor stores, nursing homes, massage parlors, pawn shops and wholesale fish dealers.

    “First they came for the wholesale fish dealers…”

    1. This is a completely different animal. The courts and the law have held that your home is your castle for hundreds of years. I’m scared to think what would happen if this goes to SCOTUS.

      1. No need to be scared. The outcome is certain. And as I said above, this is only a codification of standard practice. This IS the world we already live in.

      2. I can assure you that the rights of government will be protected.

    2. “First they came for the wholesale fish dealers…”

      That’s brilliant. You’ve gotta read it in a Monty Python style though. Like “Life of Brian” from the Sermon on the Mount scene:

      Man: I think it was, “Blessed are the cheesemakers”!

      Mrs. Gregory: Aha, what’s so special about the cheesemakers?

      Gregory: Well, obviously it’s not meant to be taken literally; it refers to any manufacturers of dairy products.

  32. “there is no right to reasonably resist unlawful entry by police officers.”

    How about a right to UNreasonably resist?

    1. In my experience, people use the word “reasonable” as a euphemism for “shut up and do what I say.”

  33. I assume Indiana has a provision for impeachment of judges; somebody should get on that.

  34. “there is no right to reasonably resist unlawful entry by police officers.”

    What is Indiana’s position on “undocumented workers”?

  35. The headline is incorrect. Our rights are not the gift of the government or the courts. What the headline should have said, is “Indiana Supreme court fails to protect the right of the people to resist unlawful entry by government agents.”

    -jcr

  36. Whats the point of preparing for a disaster when any hungry cop can pop in for a bite?

  37. I don’t know why anyone should be terribly surprised. Our government hasn’t shown much reticence in unlawfully entering entire countries, why would it give two shits about an individual’s home?

  38. If you ever find yourself in the position of resisting the unlawful activites of a cop, don’t forget to shout “Stop resisting” at regular intervals.

  39. The same argument would mean that police officers should not resist a
    civilian barging into the police station, as it may escalate into violence.
    After all, the police can instead file a civil suit against the intruder!

  40. This is completely ridiculous. Our right to private property is more important than someone smoking pot. And how is it they aren’t allowed to search a car based on these same indications, but they can invade a home?

    http://www.intellectualtakeout…..d-seizures

  41. resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

    Violating the Constitution is what escalated the violence. Sounds like escalating violence is the policy the Indiana Supreme Court is advocating.

  42. What if police officer A unlawfully raids police officer B’s home, police officer B unlawfully resists, and then police officer A unlawfully resists the resistance?

  43. This will never be abused, though right?

    http://www.mikechurch.com/Toda…..-will.html

    Took less than a fucking day.

  44. The only difference now between U.S. LEO’s and the Japanese Samurai (besides that whole honer code thing) is that the cops still sometimes manage to get a manslaughter charge when they murder a citizen (look for that to change in the near future).

  45. Indiana Supremes now are getting death threats.

    http://www.mikechurch.com/Toda…..rches.html

  46. Time to stock up on heavy weapons and keep them at the ready.

  47. Many posters seem to feel that people should legally be allowed to resist an unlawful entry into their home by police officers. The problem comes from people’s understanding of the law. Most people think they know the law when they don’t have a clue. If people were legally able to resist what the perceived as an illegal entry there would be many problems. Many people believe that an officer has to have a warrant to enter their home, they don’t. There are things like exigent circumstances that police officers are trained on but the typical citizen doesn’t understand. Exigent circumstances allow an officer to make an entry to a dwelling to preserve life or evidence. This law protects both the citizen and the police by taking the guesswork out. The police won’t face being killed by a citizen who feels that they have the right to resist and the citizen won’t face injury, death or incarceration by wrongly assuming that their home is being illegally entered and putting up a fight.

    This ruling in no way gives the police permission to illegally enter anybody’s home. If the police break the law they can face both criminal and civil sanctions. Officers still must obey the law, and evidence gathered by an illegal search will not be admitted during trial.

    1. The problem comes from people’s understanding of the law. Most people think they know the law when they don’t have a clue.

      Many a police office among them.

    2. The problem comes from people’s understanding of the law. Most people think they know the law when they don’t have a clue.

      Many a police office among them.

  48. “resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

    So, if Mr Barnes had been able to prevent the arrest – say, by killing or disabling the police officers – it would have been OK?

    Would he have to disable only the officers attempting to enter his home, or the whole police force?

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