Basically, giving you the "right" to physically resist in this situation just gives the cop an opportunity to arrest you, assault you, or kill you (put them in the order you choose, from least to most unpleasant).
Oh, and those remedies that were so toothless when it comes to illegal entry? They're just as toothless when it comes to your fool ass getting shot because you thought you'd be the king of your castle. There was real doubt that Johannes Mehserle would be charged, or be convicted, or do any real time for the Oscar Grant shooting. Some argue that he's not doing real time as it is. And that was blatant, and caught on camera.
How do you think you and your family will fare with whatever fallout arises from your valiant stand against authority?
So, at what point do we draw the line? Yes, the courts ruling that a homeowner would be within their right to repel an illegal entry by the police would be mostly symbolic. But if we're going to actually get some accountability, we need to start going in the opposite direction. And before we can go in the opposite direction, we have to stop going in the one we're heading in now.
Basically, giving you the "right" to physically resist in this situation just gives the cop an opportunity to arrest you, assault you, or kill you (put them in the order you choose, from least to most unpleasant).
Oh, and those remedies that were so toothless when it comes to illegal entry? They're just as toothless when it comes to your fool ass getting shot because you thought you'd be the king of your castle. There was real doubt that Johannes Mehserle would be charged, or be convicted, or do any real time for the Oscar Grant shooting. Some argue that he's not doing real time as it is. And that was blatant, and caught on camera.
How do you think you and your family will fare with whatever fallout arises from your valiant stand against authority?
So, at what point do we draw the line? Yes, the courts ruling that a homeowner would be within their right to repel an illegal entry by the police would be mostly symbolic. But if we're going to actually get some accountability, we need to start going in the opposite direction. And before we can go in the opposite direction, we have to stop going in the one we're heading in now.
Except encouraging people to fight back against the police is not going in the other direction. It's going off in another crazier direction.
If you want to make police more accountable, make police more accountable. Stop trying to shoe-horn in fighting with the police when they try to search your home as some kind of alternative to police accountability.
Here's the thing, only a few states ever allowed you to batter/kill/attempt to kill people for nothing more than trespassing. However, nowhere does the constitution provide people with the right to use violence against anyone, unless you are part of the government, or in self-defense, so the validity of those laws is highly suspect from the get go. The government has a legal monopoly on violence for very good reasons, and basically has since the dawn of civilization.
All this ruling does is bring the law in line with correct moral behavior with respect to mere trespassing by law enforcement. Personally, I think that the federal government should not allow any state to have "shoot them thar trespassers" laws to begin with. This won't affect the self-defense exception for the use of violence and that's all that should be needed in a home invasion situation, even if law enforcement is doing the invading.
The real effect of this if applied on a national scale will be to limit the scope of the "kill trespasser's laws" to only apply to non-law enforcement. In states free of those stupid laws this ruling is completely irrelevant, since it is already illegal to use violence against trespassers except in self defense.
Since this ruling has a negligible effect on 4th amendment protections, which do nothing more than provide remedies after the fact like all constitutionally protected rights, I really think this thread topic should be expanded to include civil forfeiture, which basically nullifies the bit of the 4th amendment that refers to "due process" before the government can seize your property. There are some very interesting ongoing cases involving civil forfeiture, that pretty well demonstrate that due process prior to property seizure is not the de facto law of the land.
Here in the U.S. we literally live without redress for illegal property seizure by law enforcement thanks to civil forfeiture, and people are whining about a nearly irrelevant and probably net positive decision in Indiana? Get your eye on the 4th amendment violations ball dudes!
Man, you people are still acting like this is some new and earth shattering infringement on out nearly non-existent 4th amendment rights! o_O
All that happened in Indiana is that they de jure-ed a de facto reality, period.
Much worse, civil seizure completely trumps 4th amendment protections against illegal seizures. As common law stands now, agents of the government are allowed to premanentally confiscate your stuff and administratively convict it of being involved in illegal acts, without any criminal case against you or any individual required, and without the possibility of appeal! In fact, a cop could illegally search you and illegally seize your property, and you could sue and win, but still not get anything back, because civil seizure is a separate legal process which cannot be won by anyone by the state, by design (property doesn't have a right to fair trial or due process, after all).
Civil seizure allows our government to act as though there is no 4th amendment protection against illegal seizure of property and they have been doing so for many, many years and the abuses only continue to get worse under this BS. The incidence of mistaken property theft by our police have climbed dramatically, and I think that it is a much more serious problem than the shenanigans in Indiana, if you think that the government should be required to convict you with due process before they can deprive you of your property permanently.
Edit: Civil Seizure makes a mockery of our justice system and the 4th amendment is what I'm saying.
Now that is fucked up.
My thoughts exactly.
I wonder if Canada and other democratic governments haqve similar forms of legal pollution, where ancient common law somehow magically trumps the supreme law of the land (the constitution).
This doesn't seem as bad as when I first looked at it for about 2 seconds. What they'd be doing would still be illegal and any charges from said search would never be totally applied since the evidence would be tainted.
The only thing I have to add is that no-knock warrants are so full of shit. Not announcing you are law enforcement prior to entering a place that might contain loaded weapons (and, let's face it, almost any place has a small possibility of this) means you deserve to get mistaken for a burglar and shot in the face, in my opinion.
Any destruction of evidence in the 5 seconds it takes to kick the door down is something I'm fine with. It isn't as though no crimes got solved before this no-knock bullshit.
well we used to solve crimes by beating people up till they confessed or busting into people's homes without any warrant at all
Hanskey, I agree that the civil forfeiture crap in the US is awful and completely abused. I remember as a kid hearing about a sheriff who would regularly pull over vehicles that had been seized in drug busts and had illegal compartments, auction them off, then pull them over again and seize them again to repeat the process. Pretty awful.
And I don't think it's a great idea to make it even easier for police to unlawfully enter a residence and decide if there's shit in there worth the trouble of making up some story so they can outright steal it/the residence itself.
I'm pretty sure this ruling will have almost no practical effect whatsoever since it's not even as restrictive toward violence against trespassers as most states are and have been for decades.
Which is to say that in most states, state laws have long been on the books that make it illegal to use violence against a cop or any other person for any reason other than self defense. This ruling simply upholds that legal position where the violence is directed specifically at law enforcement, big deal.
Again, I personally don't think the ruling goes far enough in restricting the use of violence against trespassers, because I don't believe it should be legal to use violence against anyone, not just cops, except in self defense (war too I suppose).
I'd be more curious to know how anyone could appeal a decision in a civil forfeiture case, since property (not including corporations) has no right to a trial or due process and owners apparently can't have standing to appeal decisions?
Regarding the bolded, odds are the police already think their entry is legal. So they're going to do it anyway. All you do by allowing the homeowner to physically resist (and thus encourage this behavior) is increase the number of altercations involving a police officer who is armed and who believes he has the authority to use deadly force.
The police are unlikely to give the consideration of legality more weight if there are less potential consequences for being wrong.
That is to say that there is only one potential consequence of this ruling, and that is more illegal searches by police.
Regarding the bolded, odds are the police already think their entry is legal. So they're going to do it anyway. All you do by allowing the homeowner to physically resist (and thus encourage this behavior) is increase the number of altercations involving a police officer who is armed and who believes he has the authority to use deadly force.
The police are unlikely to give the consideration of legality more weight if there are less potential consequences for being wrong.
That is to say that there is only one potential consequence of this ruling, and that is more illegal searches by police.
Even that consequence is exceptionally unlikely, since this is already illegal in most states and those states show no higher incidence of illegal search and seizures than states which do allow you to use violence against trespassers who are not trying to kill you, like Texas.
This ruling may have changed the law in Indiana, but this has been the legal reality in most states for decades. Therefore, there should be some great statistics to back up your claim.
Basically, giving you the "right" to physically resist in this situation just gives the cop an opportunity to arrest you, assault you, or kill you (put them in the order you choose, from least to most unpleasant).
Oh, and those remedies that were so toothless when it comes to illegal entry? They're just as toothless when it comes to your fool ass getting shot because you thought you'd be the king of your castle. There was real doubt that Johannes Mehserle would be charged, or be convicted, or do any real time for the Oscar Grant shooting. Some argue that he's not doing real time as it is. And that was blatant, and caught on camera.
How do you think you and your family will fare with whatever fallout arises from your valiant stand against authority?
So, at what point do we draw the line? Yes, the courts ruling that a homeowner would be within their right to repel an illegal entry by the police would be mostly symbolic. But if we're going to actually get some accountability, we need to start going in the opposite direction. And before we can go in the opposite direction, we have to stop going in the one we're heading in now.
We draw the line precisely where it is drawn now; you are allowed to use force against the police in self-defense, which when speaking of law enforcement officers pretty much means only if they are using more force than is necessary to affect a search or arrest.
Like shryke said, allowing physical force to repel an unlawful search isn't the opposite direction, it's a fucktarded direction. And it does fuck-all to address the actual problem, to boot. And it's not like this ruling goes in any direction at all, since it basically just explicitly defined what was already the de facto law in Indiana and what is already explicitly coded into self-defense laws in many other states. Nothing changed.
If you have a theory as to how allowing open force against police officer who (for better or worse) think they are doing their job is going to help move us in the right direction, I'm all ears. I don't see how it plays in part in addressing the lack of administrative oversight and legal remedy available, personally.
Is it just me or are cops really doing everything they can to end up with a perfect shitstorm where the people they're abusing are just gonna get fed up and put a bullet through the officer's skull? I'm just waiting for the eventual news report where some retarded cops do a no knock, stroll in to do their shit at the completely wrong address, bully the innocent residents inside and end up getting ventilated by some pissed off home owner.
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JuliusCaptain of Serenityon my shipRegistered Userregular
Regarding the bolded, odds are the police already think their entry is legal. So they're going to do it anyway. All you do by allowing the homeowner to physically resist (and thus encourage this behavior) is increase the number of altercations involving a police officer who is armed and who believes he has the authority to use deadly force.
The police are unlikely to give the consideration of legality more weight if there are less potential consequences for being wrong.
That is to say that there is only one potential consequence of this ruling, and that is more illegal searches by police.
Except the consequence of being wrong we are talking about are already something the police care little about. You don't win a fight with the police and the very rare complete psycho with a gun is something the account for anyway.
More illegal searches doesn't help the police. They are not going to catch more baddies or even catch more sort-of-baddies because illegal searches are illegal.
Regarding the bolded, odds are the police already think their entry is legal. So they're going to do it anyway. All you do by allowing the homeowner to physically resist (and thus encourage this behavior) is increase the number of altercations involving a police officer who is armed and who believes he has the authority to use deadly force.
The police are unlikely to give the consideration of legality more weight if there are less potential consequences for being wrong.
That is to say that there is only one potential consequence of this ruling, and that is more illegal searches by police.
What exactly are you implying? That prior to this ruling, cops sometimes decide not to go forward with a search of dubious legality because they think the homeowner might attack them? And that now, those same cops will no longer fear physical retaliation? (Because surely someone aggressive enough to pick a fight with a cop will consider carefully the legal ramifications of the act.)
Is it just me or are cops really doing everything they can to end up with a perfect shitstorm where the people they're abusing are just gonna get fed up and put a bullet through the officer's skull? I'm just waiting for the eventual news report where some retarded cops do a no knock, stroll in to do their shit at the completely wrong address, bully the innocent residents inside and end up getting ventilated by some pissed off home owner.
I'm absolutely sure this has already happened at least once.
Regarding the bolded, odds are the police already think their entry is legal. So they're going to do it anyway. All you do by allowing the homeowner to physically resist (and thus encourage this behavior) is increase the number of altercations involving a police officer who is armed and who believes he has the authority to use deadly force.
The police are unlikely to give the consideration of legality more weight if there are less potential consequences for being wrong.
That is to say that there is only one potential consequence of this ruling, and that is more illegal searches by police.
I'm going to go ahead and say flat-out that the men with guns, vests, partners, radios, backup, and a history of being able to beat the fuck out of whoever they want with impunity are not going to give a flying fuck about the "potential consequences" that a homeowner having some hazy right to use force in this situation would present.
They're just going to kick the guy's ass and/or kill him (depending how things play out), then go about their business. If there's one potential consequence they probably worry less about than legal/administrative remedies, it's having to kick somebody's ass for resisting.
Any increase in illegal searches due to this would be negligible. Like I've said, multiple states already have this hard-coded into their laws anyway. And, unsurprisingly, nobody has raised a fourth amendment challenge against those laws (or, alternately, they did and failed).
What exactly are you implying? That prior to this ruling, cops sometimes decide not to go forward with a search of dubious legality because they think the homeowner might attack them? And that now, those same cops will no longer fear physical retaliation? (Because surely someone aggressive enough to pick a fight with a cop will consider carefully the legal ramifications of the act.)
You know, when you say it like that, it sounds kinda.......yeah.
More illegal searches doesn't help the police. They are not going to catch more baddies or even catch more sort-of-baddies because illegal searches are illegal.
The only time an illegal search would help, that I can think of, is either in finding fugitives (because the illegality of the search wouldn't invalidate the arrest itself) and in seizing materials that are in and of themselves illegal (such as drugs...the charges may not stick but they're not getting their illegal shit back).
EDIT: I don't think departments are generally going to consider the benefits of either to be worth what little hassle an illegal search presents, and I certainly don't think that the ability of the homeowners to use force is going to factor in to their decision...if anything, the latter will simply cause them to execute the search more forcefully, in which case nobody wins.
Here's the thing, only a few states ever allowed you to batter/kill/attempt to kill people for nothing more than trespassing. However, nowhere does the constitution provide people with the right to use violence against anyone, unless you are part of the government, or in self-defense, so the validity of those laws is highly suspect from the get go. The government has a legal monopoly on violence for very good reasons, and basically has since the dawn of civilization.
Excuse me? There's no way any reasonable person could interpret the Declaration of Independence, the US Constitution, and the knowledge of the context of the fact that over 70,000 people died to give power to those documents up that in America we consider the government to have a monopoly on violence. It's both socially irresponsible and un-American to suggest that. The only possible result of giving the government a monopoly on violence is to turn average Americans into cowards and / or the government into thugs.
All this ruling does is bring the law in line with correct moral behavior with respect to mere trespassing by law enforcement. Personally, I think that the federal government should not allow any state to have "shoot them thar trespassers" laws to begin with. This won't affect the self-defense exception for the use of violence and that's all that should be needed in a home invasion situation, even if law enforcement is doing the invading.
The real effect of this if applied on a national scale will be to limit the scope of the "kill trespasser's laws" to only apply to non-law enforcement. In states free of those stupid laws this ruling is completely irrelevant, since it is already illegal to use violence against trespassers except in self defense.
Laws to shoot trespassers who do not surrender or attempt to flee recognize that given the lack of good information available to third parties after the fact, it is reasonable to give the safety of home owners' greater weight than criminals'.
Since this ruling has a negligible effect on 4th amendment protections, which do nothing more than provide remedies after the fact like all constitutionally protected rights, I really think this thread topic should be expanded to include civil forfeiture, which basically nullifies the bit of the 4th amendment that refers to "due process" before the government can seize your property. There are some very interesting ongoing cases involving civil forfeiture, that pretty well demonstrate that due process prior to property seizure is not the de facto law of the land.
Here in the U.S. we literally live without redress for illegal property seizure by law enforcement thanks to civil forfeiture, and people are whining about a nearly irrelevant and probably net positive decision in Indiana? Get your eye on the 4th amendment violations ball dudes!
I've been concerned about 4th amendment issues as a whole for my entire adult life. This is only one of many, and it is less insidious than eminent domain, but it is part of a larger problem. It's not the largest part, but if we keep giving inches soon we'll be miles away from where we should be.
I don't especially want to see fisticuffs with cops, but OTOH, this ruling says to cops, "If a citizen correctly refuses to cooperate with an obviously bad warrant, just arrest them. You are always right." Telling people who regularly use threats, weapons, and have extensive power to fuck with people's lives that they are never wrong is a bad fucking precedent. And no, investigations weeks or months later don't count. The objective is to have cops ask at that time, "Gee, is this right?" There is a reason people murder in death penalty states that wouldn't be willing to punch a tiger in the face. Immediate, certain repercussions are a stronger deterrent than unlikely, long-term penalties, and immediate remedies for potential rights abuses are better than some bullshit far down the line.
Laws to shoot trespassers who do not surrender or attempt to flee recognize that given the lack of good information available to third parties after the fact, it is reasonable to give the safety of home owners' greater weight than criminals'.
While the officers in this case may technically be criminals, the homeowner is not in a position to determine that nor is the comparison to common burglars or other violent criminals reasonable. Yes, if somebody is legitimately unaware that they are police they should act accordingly, and that should absolutely be considered in the aftermath.
But I'll go ahead and say again that I'm operating under the assumption, until somebody can quote me a passage of the decision that states otherwise, that all of this assumes knowledge on the part of the occupant that the person in question is a police. To a "reasonable person" standard, of course.
Telling people who regularly use threats, weapons, and have extensive power to fuck with people's lives that they are never wrong is a bad fucking precedent. And no, investigations weeks or months later don't count.
So if I murder somebody and the investigation takes weeks or months then the government is telling me that I wasn't wrong, either? That's stupid. Yes, investigations weeks or months later do count, and we definitely need to make sure that those investigations have teeth (which is the proper answer to this problem).
And I'll take a moment to jump on the "civil forfeiture laws are the fucking devil" bandwagon, the only reason I've been ignoring it is because it's not terribly relevant to the topic at hand.
What exactly are you implying? That prior to this ruling, cops sometimes decide not to go forward with a search of dubious legality because they think the homeowner might attack them? And that now, those same cops will no longer fear physical retaliation? (Because surely someone aggressive enough to pick a fight with a cop will consider carefully the legal ramifications of the act.)
You know, when you say it like that, it sounds kinda.......yeah.
More illegal searches doesn't help the police. They are not going to catch more baddies or even catch more sort-of-baddies because illegal searches are illegal.
The only time an illegal search would help, that I can think of, is either in finding fugitives (because the illegality of the search wouldn't invalidate the arrest itself) and in seizing materials that are in and of themselves illegal (such as drugs...the charges may not stick but they're not getting their illegal shit back).
Funny you should mention that since the legal basis of "illegal property" is pretty weak and completely contrary to the 4th amendment. Of course under the rubric of civil forfeiture they can then also take all your money, since you must have materially gained from being involved with drugs, and then they'll seize your car since it had to have transported drugs at least once, and finally they can seize the home that they found the drugs in even if you don't own it. Now that they literally have all your stuff they can simply administratively charge your property and sell it or burn it for their own gain and you can't do shit sbout it. There is no way to appeal civil forfeiture so maybe you ought to be more careful what applications of law you are praising here.
What exactly are you implying? That prior to this ruling, cops sometimes decide not to go forward with a search of dubious legality because they think the homeowner might attack them? And that now, those same cops will no longer fear physical retaliation? (Because surely someone aggressive enough to pick a fight with a cop will consider carefully the legal ramifications of the act.)
You know, when you say it like that, it sounds kinda.......yeah.
More illegal searches doesn't help the police. They are not going to catch more baddies or even catch more sort-of-baddies because illegal searches are illegal.
The only time an illegal search would help, that I can think of, is either in finding fugitives (because the illegality of the search wouldn't invalidate the arrest itself) and in seizing materials that are in and of themselves illegal (such as drugs...the charges may not stick but they're not getting their illegal shit back).
Funny you should mention that since the legal basis of "illegal property" is pretty weak and completely contrary to the 4th amendment. Of course under the rubric of civil forfeiture they can then also take all your money, since you must have materially gained from being involved with drugs, and then they'll seize your car since it had to have transported drugs at least once, and finally they can seize the home that they found the drugs in even if you don't own it. Now that they literally have all your stuff they can simply administratively charge your property and sell it or burn it for their own gain and you can't do shit sbout it. There is no way to appeal civil forfeiture so maybe you ought to be more careful what applications of law you are praising here.
I was speaking of the seizure of material that is, in and of itself, illegal to possess. Not cash, not cars, not homes. Quit being a goose. I get it, and I agree...civil forfeiture is fucked up, but that is an entirely separate issue to the issue in the OP.
The fact that they can keep your property without ever charging you (let alone convicting you of) a crime is, indeed, absurd. But, again, I'll repeat myself over and over and fucking over if I have to...that is the problem that needs to be addressed, and allowing people to fight the fucking cops on their doorstep plays no part in addressing it.
EDIT: Especially since there's no significant difference between "come in, search your place, and take your shit" and "come in, kick your ass, search your place, and take your shit" when it comes to the issue you're concerned with (civil forfeiture). The search is already illegal, and it already doesn't matter in this context...whether or not a fight occurs, they can still take your shit and keep it.
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JuliusCaptain of Serenityon my shipRegistered Userregular
More illegal searches doesn't help the police. They are not going to catch more baddies or even catch more sort-of-baddies because illegal searches are illegal.
The only time an illegal search would help, that I can think of, is either in finding fugitives (because the illegality of the search wouldn't invalidate the arrest itself) and in seizing materials that are in and of themselves illegal (such as drugs...the charges may not stick but they're not getting their illegal shit back).
EDIT: I don't think departments are generally going to consider the benefits of either to be worth what little hassle an illegal search presents, and I certainly don't think that the ability of the homeowners to use force is going to factor in to their decision...if anything, the latter will simply cause them to execute the search more forcefully, in which case nobody wins.
Yeah I meant to add something like "considered worth it" on that. I don't think any cop more than a month into the force considers just getting the few drugs in a place a good use of their time.
... And I'll take a moment to jump on the "civil forfeiture laws are the fucking devil" bandwagon, the only reason I've been ignoring it is because it's not terribly relevant to the topic at hand.
Hopefully someone with the power to do so will broaden the topic, because it would be kinda dumb to have two threads about how our government is fucking up our 4th amendment rights. Right now all I've really been able to say about it is that it is more of a problem than the decision in Indiana which is actually topic relevant.
Edit: Sorry I got snarky on that one point. After all, I basically agree with your positions both on the Indiana verdict, and civil forfeiture.
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JuliusCaptain of Serenityon my shipRegistered Userregular
What exactly are you implying? That prior to this ruling, cops sometimes decide not to go forward with a search of dubious legality because they think the homeowner might attack them? And that now, those same cops will no longer fear physical retaliation? (Because surely someone aggressive enough to pick a fight with a cop will consider carefully the legal ramifications of the act.)
You know, when you say it like that, it sounds kinda.......yeah.
More illegal searches doesn't help the police. They are not going to catch more baddies or even catch more sort-of-baddies because illegal searches are illegal.
The only time an illegal search would help, that I can think of, is either in finding fugitives (because the illegality of the search wouldn't invalidate the arrest itself) and in seizing materials that are in and of themselves illegal (such as drugs...the charges may not stick but they're not getting their illegal shit back).
Funny you should mention that since the legal basis of "illegal property" is pretty weak and completely contrary to the 4th amendment. Of course under the rubric of civil forfeiture they can then also take all your money, since you must have materially gained from being involved with drugs, and then they'll seize your car since it had to have transported drugs at least once, and finally they can seize the home that they found the drugs in even if you don't own it. Now that they literally have all your stuff they can simply administratively charge your property and sell it or burn it for their own gain and you can't do shit sbout it. There is no way to appeal civil forfeiture so maybe you ought to be more careful what applications of law you are praising here.
I mean, unless you want to change it so that police who use any force whatsoever in affecting an illegal search can (and more importantly would) be charged with assault. Which, I'm guessing was absolutely not the case prior to this ruling, and will never become the case anyway.
Though that would be another solution. Though simply toughening administrative and legal recourse for illegal searches (and addressing civil forfeiture, a separate issue entirely) would still be preferable.
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JuliusCaptain of Serenityon my shipRegistered Userregular
edited May 2011
Also guys. I'm pretty sure that if you do manage to keep the first few cops away it will be grounds for a warrant.
"He violently resisted us! Within his rights of course."
"probably hiding something, here's a warrant to check that shit out"
"cool"
Also guys. I'm pretty sure that if you do manage to keep the first few cops away it will be grounds for a warrant.
"He violently resisted us! Within his rights of course."
"probably hiding something, here's a warrant to check that shit out"
"cool"
Actually, you might be able to fight that in court at some point (absent this ruling, that is). Since failure to consent to a search cannot be used as probable cause for a search. If the force you used was simply to stop what you perceived to be a trespass (after you did not consent to a search) I don't think they could use that incident as grounds to affect the very search you weren't' consenting to.
Theoretically.
I don't think it would get them a warrant, for this reason, but I'd bet cash money that a judge would later uphold a probable cause/exigent circumstances search in this case (again, in a pre-ruling Indiana).
Actually, that poses an interesting question; since assaulting them now would mean you've committed a crime, does that make a search legal? Even if it otherwise wouldn't have been? My guess is no, or at least that it doesn't justify any further of a search than is necessary to affect your arrest and ensure their safety (which wouldn't be much).
Assault on an officer could easily be construed as grounds for a legal, incidental warrant-less search if handled correctly by the officers.
To quote wikipedia
In most cases, a search warrant is required to perform a lawful search. An long-recognized exception to this requirement is searches incident to a lawful arrest.[1] This rule permits an officer to perform a warrantless search during or immediately after a lawful arrest. This search is limited to only the person arrested and the area immediately surrounding the person in which the person may gain possession of a weapon, in some way effect an escape, or destroy or hide evidence.[2]
In the case of Arizona v. Gant (April 21, 2009) the Supreme Court ruled a further exemption in that the police can search a car following arrest only if they could have a reasonable belief that the person arrested "could have accessed his car at the time of the search" or "that evidence of the offense for which he was arrested might have been found therein."
I understand that often this kind of search is only legal for the immediate area and so evidence found outside the room you occupied when the assault happened might not be admitted in court, but it's all dependent on the arrest being legal to begin with.
Of course, this is probably why no judge bothered to rule on this point prior to now and yet another reason why this ruling is totally barren of real-life consequences.
Also an impossible absurdity? Or just an absurdity?
This should be fairly simple to understand, but it seems most don't grasp this yet:
The court saying "you don't have the right to use physical force to resist X" is not the same things as saying "X is legal."
You can see how those are two different things, right?
Like, I can say that littering is illegal, and I can also say that you don't have the right to punch someone for littering. Those two things can both be true.
What can't be true, what everyone seems to think happened, is that the court said, "illegal entries are not illegal." Which is absurdity.
Aside from, completely ignoring how it has been mentioned a hundred times, the judge could have just ruled that in this case exigent circumstances were sufficient.
I addressed that at some length. tl;dr: 1) the trial court did not rule on the legality of the entry, but it did hear arguments from both sides on that issue, and the defendant was found guilty. 2) The appeals court said that "evidence supports a conclusion that" the entry was illegal, which is not quite the same thing as ruling it illegal or even necessarily implying that it was illegal, but rather only suggesting it might have been illegal for the purpose of establishing that there was a significant error made by the judge that could have affected the outcome. 3) The supreme court did not disagree with how the appeals court handled the issue of whether the entry was legal, and hence had no legitimate reason address that. They implied that it could have been legal, but decided that in the execution of the duties of the Supreme Court, that facet wasn't relevant, and so they left the appeals court determination as it was.
Super tl;dr: judicial restraint does not mean that the Court must always opt for the most precise manner in which to overturn a lower court's decision. If that was the case, hell, they should have just ruled that the cops didn't actually try to enter. No, the Court has to address the issue it legitimately faces within the proper execution of its duties, and only then seek the most limiting and precise means necessary. The issue legitimately facing the Supreme Court was whether or not the jury should have been told that Barnes had a right to use force to stop an unlawful entry. Since that right is only common-law and isn't explicitly in writing anywhere, and since this Court had never ruled on whether such a right even exists, then the question of whether the right exists would seem to be a necessary decision.
Are you really saying that homeowners being unable to respond to police performing an illegal action as they would to another citizen performing an illegal action does not inherently mean police have further rights (not to be responded to as another citizen can be) than another citizen does?
Your reasoning here is unbalanced. If the entry being illegal didn't stop the cop from entering, how does the citizen's forceful resistance being illegal stop him from resisting? If you're saying that this ruling makes homeowners "unable" to resist, then you must also acknowledge that the existing body of law makes a cop "unable" to enter a home illegally. Inasmuch as cops will now expect people to step aside passively during an illegal entry, so too do people expect that cops aren't going to enter illegally in the first place. Your assumptions need some parity regarding human nature and the law.
Seriously? It's the right to barge into a house illegally and not be resisted. What is in any way convoluted or hard to understand about that?
Rather than call it convoluted, I'd just call it true. A cop who is attempting to fulfill his sworn duty legitimately and in earnest has a right to not meet physical force resistance from citizens. In modern jurisprudence, this reasonably includes a cop who has inadvertently acted illegally under the 4th. Although it wasn't specifically touched on in this decision, other precedents would seem to restrict this only to normal police activities like entering a home or arresting someone (even if it's later deemed illegal), but not activities which are, on their face, not at all in the realm of actions of reasonable police, such as slapping your wife around.
All the cop training in the world can't create a cop who knows every detail on the applicable precedents and procedures and such pertaining to legal vs. illegal entry and can apply them with perfection in the heat of the moment. The legality of a forced entry, or even the legality of a warrant, is frequently decided by some of the best lawyers in the country and only after months and months of argument. Hence the very idea is nonsense that you have the right to fight with a cop because you think you'll win in court over whether he was acting legally or not. Nether you nor the cop can know for sure how the argument will play out, so it is folly to assert that there is some immediate violence right-of-way in play that depends on the result of that future legal proceeding. So long as the cop appears to be at least vaguely doing cop-esque work, then you need to fucking cool it and have faith that the system has lots of non-violent means of justice if you are truly innocent and he is truly acting outside the law.
So, at what point do we draw the line? Yes, the courts ruling that a homeowner would be within their right to repel an illegal entry by the police would be mostly symbolic. But if we're going to actually get some accountability, we need to start going in the opposite direction. And before we can go in the opposite direction, we have to stop going in the one we're heading in now.
As I said earlier, the direction is almost unanimously one-way, it's just that every now and then we have to sweep up some of the overspill. The idea you're supposing, that history is a sequence leading to more and more abuse of police power with less and less remedy and oversight, well I think even a non-dirty cop might want to bust down your door and slap you around for that. It's only because of all of the additional protections we've put in place for citizens that we are now in this situation where it doesn't make sense to recognize a right of a citizen to rise up in force against an officer. That is the ultimate ironic point here that think is lost on everyone. When the decision talks about "modern 4th Amendment jurisprudence," they're talking about just how damn difficult and complicated it is for a cop to enter a dwelling legally in modern times, due entirely to all of the progress we've made.
well we used to solve crimes by beating people up till they confessed or busting into people's homes without any warrant at all
Exactly. Or, you know, find the nearest black guy and blame him for the crime. They don't let you do that no more. Hence, your right to fight with cops is counter-productive.
well we used to solve crimes by beating people up till they confessed or busting into people's homes without any warrant at all
Exactly. Or, you know, find the nearest black guy and blame him for the crime. They don't let you do that no more. Hence, your right to fight with cops is counter-productive.
... waitaminute ...
... <_< >_> ...
... they stopped doing that????? This changes ...
everything ...
Edit: I wonder how long the judge had to wait to plug up that hole. It seems like he really went out of his way to specifically fix the conflict between the common law practice of allowing people to violently and personally protect their rights, and the illegality of assault, battery, murder and attempted murder, not that I'm complaining.
As I said earlier, the direction is almost unanimously one-way, it's just that every now and then we have to sweep up some of the overspill. The idea you're supposing, that history is a sequence leading to more and more abuse of police power with less and less remedy and oversight, well I think even a non-dirty cop might want to bust down your door and slap you around for that. It's only because of all of the additional protections we've put in place for citizens that we are now in this situation where it doesn't make sense to recognize a right of a citizen to rise up in force against an officer. That is the ultimate ironic point here that think is lost on everyone. When the decision talks about "modern 4th Amendment jurisprudence," they're talking about just how damn difficult and complicated it is for a cop to enter a dwelling legally in modern times, due entirely to all of the progress we've made.
I think a lot of people have a problem seeing the progress you're talking about, because really things are still pretty bad right now. Not in relative terms, obviously, but in absolute terms. So it's hard to understand that things really were much, much worse in the past. Even if we may have had more theoretical legal protections (particularly in terms of property and search/seizure) fifty or a hundred years ago, the real world effect has been positive.
Basically, cops might be allowed to do more shit today, but they were more comfortable doing shit they weren't allowed to back then. Yes, this is possible (because I know they quite often piss on the law as it is).
Is it just me or are cops really doing everything they can to end up with a perfect shitstorm where the people they're abusing are just gonna get fed up and put a bullet through the officer's skull? I'm just waiting for the eventual news report where some retarded cops do a no knock, stroll in to do their shit at the completely wrong address, bully the innocent residents inside and end up getting ventilated by some pissed off home owner.
I'm absolutely sure this has already happened at least once.
It did. A marine was shot and left to die and they didn't let an ambulance come to save him, he probably would've died anyways.
Except the problem is, now the widow and family can no longer sue the cops for fucking up, because he had no right to resist them, even though he had just done a long shift at a coal mine and was probably exhausted and not thinking clearly.
Oh and the fact that he didn't even shoot at them, and they probably would've shot him anyways because the cop behind them discharged his firearm.
Yeah, I'd still rather a cop get his head blown the fuck off than the inverse, sorry.
bowen on
not a doctor, not a lawyer, examples I use may not be fully researched so don't take out of context plz, don't @ me
Is it just me or are cops really doing everything they can to end up with a perfect shitstorm where the people they're abusing are just gonna get fed up and put a bullet through the officer's skull? I'm just waiting for the eventual news report where some retarded cops do a no knock, stroll in to do their shit at the completely wrong address, bully the innocent residents inside and end up getting ventilated by some pissed off home owner.
I'm absolutely sure this has already happened at least once.
It did. A marine was shot and left to die and they didn't let an ambulance come to save him, he probably would've died anyways.
Except the problem is, now the widow and family can no longer sue the cops for fucking up, because he had no right to resist them, even though he had just done a long shift at a coal mine and was probably exhausted and not thinking clearly.
Are we sure that the widow can't sue anymore? I don't think it's quite that clear.
Oh and the fact that he didn't even shoot at them, and they probably would've shot him anyways because the cop behind them discharged his firearm.
Yeah, I'd still rather a cop get his head blown the fuck off than the inverse, sorry.
Sounds like the status quo didn't really lead to this result anyway, though. I mean, based on the first half of your post. Who does or does not have the right to resist doesn't seem to really change which head gets blown off.
If she lived in a state with this law, I'd wager probably not, mainly because they can prove intent on his part to resist the warrant-less entry.
It seems the marine was doing it by the book, not firing and waiting for ID and judging whether this person has the right to enter. It's obvious that these exceptions and laws are going to be abused and lead to more citizen deaths in the future just by the very nature of "holy shit someone is breaking into my house without my consent." I, again, honestly do not care if a cop gets shot because we're protecting the citizen's rights to defend their property -- even against cops. Especially against cops.
I would rather 14 cops get shot in the face than 1 citizen in their dwelling. A sad state, and probably a lot many of you will disagree with. As communist, socialist, and liberal as I can be, I do think a person has a sovereign right to their property that the cops should need MANY checks and balances to override that. Especially since they can override it quite easily.
Who the fuck gives a dicking shit if they flush some cocaine down the toilet? Oh god no, that's fucking terrible.
bowen on
not a doctor, not a lawyer, examples I use may not be fully researched so don't take out of context plz, don't @ me
I wonder if he didn't have a gun if he still would've been shot when the other police discharges his firearm and spooked the rest of the squad.
I would like that too, but I don't live in that world where police don't shoot suspects for no reason other than "I can."
Fuck there was a women not 500 yards from me that was dragged from her car and tazed because the cop thought she was on her cell phone (she wasn't) and she refused to step out of the car so he could search it (for what?). Yeah let's taze and shoot people for misdemeanors. You live in a fanciful world shryke, the US is more like soviet Russia now than Canada.
bowen on
not a doctor, not a lawyer, examples I use may not be fully researched so don't take out of context plz, don't @ me
If she lived in a state with this law, I'd wager probably not, mainly because they can prove intent on his part to resist the warrant-less entry.
It seems the marine was doing it by the book, not firing and waiting for ID and judging whether this person has the right to enter....
First, I'll vote that this marine's case is a slam-dunk wrongful death suit for the widow. Intent is not the same as committing violence for real against officers. The ruling in Indiana makes no comment on intent; only actual violent actions resisting illegal search and seizure by the cops are ruled out. The reason is that one can have the intent to kill them all and yet actually not resist the home invasion in the slightest, so intent is irrelevant as a legal test.
Second, this ruling (it's not a law, but a ruling on a common law practice) will have no effect on that case whatsoever, from what you have described, because he didn't violently resist entry. Having a gun drawn is completely different from actually committing violence against the officers, legally speaking. The officers made a terribly sad mistake, which is pretty squarely wrongful death, and she should be able to extract a fuckton of cash from the police department. That will come as little salve for her pain, I'm sure, since her husband is dead, but there's little one can do to change how SWAT works until there are lots and lots of incidences like this.
Also, unless this marine and his wife live in Indiana then the ruling has exactly zero impact on her case.
Finally, in the U.S. it really depends on the officer you happen to put yourself in the way of as to whether law enforcement will act toward you in a legal manner or not. Most are reasonable people who don't abuse their power, but damn there are a fuckload of the other kind too. I'd be interested to know if the tazed woman sued the cop, not that you'd be likely to know that as a random bystandard.
Yeah, I think she is. It happened in January I believe, pretty big news story. She got tazed twice, once for getting out of her car to show him her cell phone that she hasn't used it and again after he told her she was under arrest and she was pleading with him not to leave her kids alone.
Luckily the 15 year old son was with them and not just the 5 year old daughter.
bowen on
not a doctor, not a lawyer, examples I use may not be fully researched so don't take out of context plz, don't @ me
I would rather 14 cops get shot in the face than 1 citizen in their dwelling. A sad state, and probably a lot many of you will disagree with. As communist, socialist, and liberal as I can be, I do think a person has a sovereign right to their property that the cops should need MANY checks and balances to override that. Especially since they can override it quite easily.
First off, I actually agree that I'd much rather scores of cops get shot than one innocent citizen in their home. That's not even a tough call for me. They chose to be cops, and they chose to remain cops and enforce these policies. They can choose not to be cops at any time.
However, this is entirely irrelevant to the matter at hand. Because "right to resist" or no the citizen is still fucking going to get shot. Period. You think the possibility of resistance is going to dissuade SWAT teams from doing breaches and no-knock entries? Why do you think they do those in the first fucking place? Yes, it's partly to preserve evidence. But the tactics are also intended to overwhelm any possible resistance.
I see this situation playing out similar to this, because these kinds of laws, while we've been doing them for a while in practice, actually stamping it down as "yes this is how we need to do it." is just going to open up a huge slippery slope:
Cop sees guy talking on cell phone or speeding
Follows him home
Knocks on door, informs guy he was speeding and says he's here to search for drugs because he looks like he was driving under the influence
Guy tells cop to fuck off, cop calls for backup, arrest guy
This story hits newspapers
Two weeks later same thing happens again except this time cop gets shot in the face as soon as he identifies himself as a cop
Two months later, cops do a no knock entry on a family of 3, a single mother and her two children, the end up in critical condition and one or both of the children are dead. Massive reforms to the 4th amendment take place and warrants become hard to get and cops aren't allowed to bring anything more than night sticks. Eventually cops aren't allowed guns.
Granted that's all motherfucking hyperbole but I am so desensitized to bullshit cops at this point I don't see how it won't happen. Especially after that marine was basically butchered because cops are retarded.
bowen on
not a doctor, not a lawyer, examples I use may not be fully researched so don't take out of context plz, don't @ me
Posts
So, at what point do we draw the line? Yes, the courts ruling that a homeowner would be within their right to repel an illegal entry by the police would be mostly symbolic. But if we're going to actually get some accountability, we need to start going in the opposite direction. And before we can go in the opposite direction, we have to stop going in the one we're heading in now.
Except encouraging people to fight back against the police is not going in the other direction. It's going off in another crazier direction.
If you want to make police more accountable, make police more accountable. Stop trying to shoe-horn in fighting with the police when they try to search your home as some kind of alternative to police accountability.
All this ruling does is bring the law in line with correct moral behavior with respect to mere trespassing by law enforcement. Personally, I think that the federal government should not allow any state to have "shoot them thar trespassers" laws to begin with. This won't affect the self-defense exception for the use of violence and that's all that should be needed in a home invasion situation, even if law enforcement is doing the invading.
The real effect of this if applied on a national scale will be to limit the scope of the "kill trespasser's laws" to only apply to non-law enforcement. In states free of those stupid laws this ruling is completely irrelevant, since it is already illegal to use violence against trespassers except in self defense.
Since this ruling has a negligible effect on 4th amendment protections, which do nothing more than provide remedies after the fact like all constitutionally protected rights, I really think this thread topic should be expanded to include civil forfeiture, which basically nullifies the bit of the 4th amendment that refers to "due process" before the government can seize your property. There are some very interesting ongoing cases involving civil forfeiture, that pretty well demonstrate that due process prior to property seizure is not the de facto law of the land.
Here in the U.S. we literally live without redress for illegal property seizure by law enforcement thanks to civil forfeiture, and people are whining about a nearly irrelevant and probably net positive decision in Indiana? Get your eye on the 4th amendment violations ball dudes!
I wonder if Canada and other democratic governments haqve similar forms of legal pollution, where ancient common law somehow magically trumps the supreme law of the land (the constitution).
well we used to solve crimes by beating people up till they confessed or busting into people's homes without any warrant at all
Which is to say that in most states, state laws have long been on the books that make it illegal to use violence against a cop or any other person for any reason other than self defense. This ruling simply upholds that legal position where the violence is directed specifically at law enforcement, big deal.
Again, I personally don't think the ruling goes far enough in restricting the use of violence against trespassers, because I don't believe it should be legal to use violence against anyone, not just cops, except in self defense (war too I suppose).
I'd be more curious to know how anyone could appeal a decision in a civil forfeiture case, since property (not including corporations) has no right to a trial or due process and owners apparently can't have standing to appeal decisions?
The police are unlikely to give the consideration of legality more weight if there are less potential consequences for being wrong.
That is to say that there is only one potential consequence of this ruling, and that is more illegal searches by police.
This ruling may have changed the law in Indiana, but this has been the legal reality in most states for decades. Therefore, there should be some great statistics to back up your claim.
We draw the line precisely where it is drawn now; you are allowed to use force against the police in self-defense, which when speaking of law enforcement officers pretty much means only if they are using more force than is necessary to affect a search or arrest.
Like shryke said, allowing physical force to repel an unlawful search isn't the opposite direction, it's a fucktarded direction. And it does fuck-all to address the actual problem, to boot. And it's not like this ruling goes in any direction at all, since it basically just explicitly defined what was already the de facto law in Indiana and what is already explicitly coded into self-defense laws in many other states. Nothing changed.
If you have a theory as to how allowing open force against police officer who (for better or worse) think they are doing their job is going to help move us in the right direction, I'm all ears. I don't see how it plays in part in addressing the lack of administrative oversight and legal remedy available, personally.
Except the consequence of being wrong we are talking about are already something the police care little about. You don't win a fight with the police and the very rare complete psycho with a gun is something the account for anyway.
More illegal searches doesn't help the police. They are not going to catch more baddies or even catch more sort-of-baddies because illegal searches are illegal.
What exactly are you implying? That prior to this ruling, cops sometimes decide not to go forward with a search of dubious legality because they think the homeowner might attack them? And that now, those same cops will no longer fear physical retaliation? (Because surely someone aggressive enough to pick a fight with a cop will consider carefully the legal ramifications of the act.)
I'm absolutely sure this has already happened at least once.
I'm going to go ahead and say flat-out that the men with guns, vests, partners, radios, backup, and a history of being able to beat the fuck out of whoever they want with impunity are not going to give a flying fuck about the "potential consequences" that a homeowner having some hazy right to use force in this situation would present.
They're just going to kick the guy's ass and/or kill him (depending how things play out), then go about their business. If there's one potential consequence they probably worry less about than legal/administrative remedies, it's having to kick somebody's ass for resisting.
Any increase in illegal searches due to this would be negligible. Like I've said, multiple states already have this hard-coded into their laws anyway. And, unsurprisingly, nobody has raised a fourth amendment challenge against those laws (or, alternately, they did and failed).
You know, when you say it like that, it sounds kinda.......yeah.
The only time an illegal search would help, that I can think of, is either in finding fugitives (because the illegality of the search wouldn't invalidate the arrest itself) and in seizing materials that are in and of themselves illegal (such as drugs...the charges may not stick but they're not getting their illegal shit back).
EDIT: I don't think departments are generally going to consider the benefits of either to be worth what little hassle an illegal search presents, and I certainly don't think that the ability of the homeowners to use force is going to factor in to their decision...if anything, the latter will simply cause them to execute the search more forcefully, in which case nobody wins.
Excuse me? There's no way any reasonable person could interpret the Declaration of Independence, the US Constitution, and the knowledge of the context of the fact that over 70,000 people died to give power to those documents up that in America we consider the government to have a monopoly on violence. It's both socially irresponsible and un-American to suggest that. The only possible result of giving the government a monopoly on violence is to turn average Americans into cowards and / or the government into thugs.
Laws to shoot trespassers who do not surrender or attempt to flee recognize that given the lack of good information available to third parties after the fact, it is reasonable to give the safety of home owners' greater weight than criminals'.
I've been concerned about 4th amendment issues as a whole for my entire adult life. This is only one of many, and it is less insidious than eminent domain, but it is part of a larger problem. It's not the largest part, but if we keep giving inches soon we'll be miles away from where we should be.
I don't especially want to see fisticuffs with cops, but OTOH, this ruling says to cops, "If a citizen correctly refuses to cooperate with an obviously bad warrant, just arrest them. You are always right." Telling people who regularly use threats, weapons, and have extensive power to fuck with people's lives that they are never wrong is a bad fucking precedent. And no, investigations weeks or months later don't count. The objective is to have cops ask at that time, "Gee, is this right?" There is a reason people murder in death penalty states that wouldn't be willing to punch a tiger in the face. Immediate, certain repercussions are a stronger deterrent than unlikely, long-term penalties, and immediate remedies for potential rights abuses are better than some bullshit far down the line.
While the officers in this case may technically be criminals, the homeowner is not in a position to determine that nor is the comparison to common burglars or other violent criminals reasonable. Yes, if somebody is legitimately unaware that they are police they should act accordingly, and that should absolutely be considered in the aftermath.
But I'll go ahead and say again that I'm operating under the assumption, until somebody can quote me a passage of the decision that states otherwise, that all of this assumes knowledge on the part of the occupant that the person in question is a police. To a "reasonable person" standard, of course.
So if I murder somebody and the investigation takes weeks or months then the government is telling me that I wasn't wrong, either? That's stupid. Yes, investigations weeks or months later do count, and we definitely need to make sure that those investigations have teeth (which is the proper answer to this problem).
And I'll take a moment to jump on the "civil forfeiture laws are the fucking devil" bandwagon, the only reason I've been ignoring it is because it's not terribly relevant to the topic at hand.
I was speaking of the seizure of material that is, in and of itself, illegal to possess. Not cash, not cars, not homes. Quit being a goose. I get it, and I agree...civil forfeiture is fucked up, but that is an entirely separate issue to the issue in the OP.
The fact that they can keep your property without ever charging you (let alone convicting you of) a crime is, indeed, absurd. But, again, I'll repeat myself over and over and fucking over if I have to...that is the problem that needs to be addressed, and allowing people to fight the fucking cops on their doorstep plays no part in addressing it.
EDIT: Especially since there's no significant difference between "come in, search your place, and take your shit" and "come in, kick your ass, search your place, and take your shit" when it comes to the issue you're concerned with (civil forfeiture). The search is already illegal, and it already doesn't matter in this context...whether or not a fight occurs, they can still take your shit and keep it.
Yeah I meant to add something like "considered worth it" on that. I don't think any cop more than a month into the force considers just getting the few drugs in a place a good use of their time.
Edit: Sorry I got snarky on that one point. After all, I basically agree with your positions both on the Indiana verdict, and civil forfeiture.
And they could already do that anyway. So uh....
Though that would be another solution. Though simply toughening administrative and legal recourse for illegal searches (and addressing civil forfeiture, a separate issue entirely) would still be preferable.
"He violently resisted us! Within his rights of course."
"probably hiding something, here's a warrant to check that shit out"
"cool"
Actually, you might be able to fight that in court at some point (absent this ruling, that is). Since failure to consent to a search cannot be used as probable cause for a search. If the force you used was simply to stop what you perceived to be a trespass (after you did not consent to a search) I don't think they could use that incident as grounds to affect the very search you weren't' consenting to.
Theoretically.
I don't think it would get them a warrant, for this reason, but I'd bet cash money that a judge would later uphold a probable cause/exigent circumstances search in this case (again, in a pre-ruling Indiana).
To quote wikipedia I understand that often this kind of search is only legal for the immediate area and so evidence found outside the room you occupied when the assault happened might not be admitted in court, but it's all dependent on the arrest being legal to begin with.
Of course, this is probably why no judge bothered to rule on this point prior to now and yet another reason why this ruling is totally barren of real-life consequences.
The court saying "you don't have the right to use physical force to resist X" is not the same things as saying "X is legal."
You can see how those are two different things, right?
Like, I can say that littering is illegal, and I can also say that you don't have the right to punch someone for littering. Those two things can both be true.
What can't be true, what everyone seems to think happened, is that the court said, "illegal entries are not illegal." Which is absurdity.
I addressed that at some length. tl;dr: 1) the trial court did not rule on the legality of the entry, but it did hear arguments from both sides on that issue, and the defendant was found guilty. 2) The appeals court said that "evidence supports a conclusion that" the entry was illegal, which is not quite the same thing as ruling it illegal or even necessarily implying that it was illegal, but rather only suggesting it might have been illegal for the purpose of establishing that there was a significant error made by the judge that could have affected the outcome. 3) The supreme court did not disagree with how the appeals court handled the issue of whether the entry was legal, and hence had no legitimate reason address that. They implied that it could have been legal, but decided that in the execution of the duties of the Supreme Court, that facet wasn't relevant, and so they left the appeals court determination as it was.
Super tl;dr: judicial restraint does not mean that the Court must always opt for the most precise manner in which to overturn a lower court's decision. If that was the case, hell, they should have just ruled that the cops didn't actually try to enter. No, the Court has to address the issue it legitimately faces within the proper execution of its duties, and only then seek the most limiting and precise means necessary. The issue legitimately facing the Supreme Court was whether or not the jury should have been told that Barnes had a right to use force to stop an unlawful entry. Since that right is only common-law and isn't explicitly in writing anywhere, and since this Court had never ruled on whether such a right even exists, then the question of whether the right exists would seem to be a necessary decision.
Your reasoning here is unbalanced. If the entry being illegal didn't stop the cop from entering, how does the citizen's forceful resistance being illegal stop him from resisting? If you're saying that this ruling makes homeowners "unable" to resist, then you must also acknowledge that the existing body of law makes a cop "unable" to enter a home illegally. Inasmuch as cops will now expect people to step aside passively during an illegal entry, so too do people expect that cops aren't going to enter illegally in the first place. Your assumptions need some parity regarding human nature and the law.
Rather than call it convoluted, I'd just call it true. A cop who is attempting to fulfill his sworn duty legitimately and in earnest has a right to not meet physical force resistance from citizens. In modern jurisprudence, this reasonably includes a cop who has inadvertently acted illegally under the 4th. Although it wasn't specifically touched on in this decision, other precedents would seem to restrict this only to normal police activities like entering a home or arresting someone (even if it's later deemed illegal), but not activities which are, on their face, not at all in the realm of actions of reasonable police, such as slapping your wife around.
All the cop training in the world can't create a cop who knows every detail on the applicable precedents and procedures and such pertaining to legal vs. illegal entry and can apply them with perfection in the heat of the moment. The legality of a forced entry, or even the legality of a warrant, is frequently decided by some of the best lawyers in the country and only after months and months of argument. Hence the very idea is nonsense that you have the right to fight with a cop because you think you'll win in court over whether he was acting legally or not. Nether you nor the cop can know for sure how the argument will play out, so it is folly to assert that there is some immediate violence right-of-way in play that depends on the result of that future legal proceeding. So long as the cop appears to be at least vaguely doing cop-esque work, then you need to fucking cool it and have faith that the system has lots of non-violent means of justice if you are truly innocent and he is truly acting outside the law.
As I said earlier, the direction is almost unanimously one-way, it's just that every now and then we have to sweep up some of the overspill. The idea you're supposing, that history is a sequence leading to more and more abuse of police power with less and less remedy and oversight, well I think even a non-dirty cop might want to bust down your door and slap you around for that. It's only because of all of the additional protections we've put in place for citizens that we are now in this situation where it doesn't make sense to recognize a right of a citizen to rise up in force against an officer. That is the ultimate ironic point here that think is lost on everyone. When the decision talks about "modern 4th Amendment jurisprudence," they're talking about just how damn difficult and complicated it is for a cop to enter a dwelling legally in modern times, due entirely to all of the progress we've made.
Exactly. Or, you know, find the nearest black guy and blame him for the crime. They don't let you do that no more. Hence, your right to fight with cops is counter-productive.
... waitaminute ...
... <_< >_> ...
... they stopped doing that????? This changes ...
everything ...
Edit: I wonder how long the judge had to wait to plug up that hole. It seems like he really went out of his way to specifically fix the conflict between the common law practice of allowing people to violently and personally protect their rights, and the illegality of assault, battery, murder and attempted murder, not that I'm complaining.
I think a lot of people have a problem seeing the progress you're talking about, because really things are still pretty bad right now. Not in relative terms, obviously, but in absolute terms. So it's hard to understand that things really were much, much worse in the past. Even if we may have had more theoretical legal protections (particularly in terms of property and search/seizure) fifty or a hundred years ago, the real world effect has been positive.
Basically, cops might be allowed to do more shit today, but they were more comfortable doing shit they weren't allowed to back then. Yes, this is possible (because I know they quite often piss on the law as it is).
It did. A marine was shot and left to die and they didn't let an ambulance come to save him, he probably would've died anyways.
Except the problem is, now the widow and family can no longer sue the cops for fucking up, because he had no right to resist them, even though he had just done a long shift at a coal mine and was probably exhausted and not thinking clearly.
Oh and the fact that he didn't even shoot at them, and they probably would've shot him anyways because the cop behind them discharged his firearm.
Yeah, I'd still rather a cop get his head blown the fuck off than the inverse, sorry.
Are we sure that the widow can't sue anymore? I don't think it's quite that clear.
Sounds like the status quo didn't really lead to this result anyway, though. I mean, based on the first half of your post. Who does or does not have the right to resist doesn't seem to really change which head gets blown off.
It seems the marine was doing it by the book, not firing and waiting for ID and judging whether this person has the right to enter. It's obvious that these exceptions and laws are going to be abused and lead to more citizen deaths in the future just by the very nature of "holy shit someone is breaking into my house without my consent." I, again, honestly do not care if a cop gets shot because we're protecting the citizen's rights to defend their property -- even against cops. Especially against cops.
I would rather 14 cops get shot in the face than 1 citizen in their dwelling. A sad state, and probably a lot many of you will disagree with. As communist, socialist, and liberal as I can be, I do think a person has a sovereign right to their property that the cops should need MANY checks and balances to override that. Especially since they can override it quite easily.
Who the fuck gives a dicking shit if they flush some cocaine down the toilet? Oh god no, that's fucking terrible.
Maybe that's just me.
I would like that too, but I don't live in that world where police don't shoot suspects for no reason other than "I can."
Fuck there was a women not 500 yards from me that was dragged from her car and tazed because the cop thought she was on her cell phone (she wasn't) and she refused to step out of the car so he could search it (for what?). Yeah let's taze and shoot people for misdemeanors. You live in a fanciful world shryke, the US is more like soviet Russia now than Canada.
Second, this ruling (it's not a law, but a ruling on a common law practice) will have no effect on that case whatsoever, from what you have described, because he didn't violently resist entry. Having a gun drawn is completely different from actually committing violence against the officers, legally speaking. The officers made a terribly sad mistake, which is pretty squarely wrongful death, and she should be able to extract a fuckton of cash from the police department. That will come as little salve for her pain, I'm sure, since her husband is dead, but there's little one can do to change how SWAT works until there are lots and lots of incidences like this.
Also, unless this marine and his wife live in Indiana then the ruling has exactly zero impact on her case.
Finally, in the U.S. it really depends on the officer you happen to put yourself in the way of as to whether law enforcement will act toward you in a legal manner or not. Most are reasonable people who don't abuse their power, but damn there are a fuckload of the other kind too. I'd be interested to know if the tazed woman sued the cop, not that you'd be likely to know that as a random bystandard.
Luckily the 15 year old son was with them and not just the 5 year old daughter.
First off, I actually agree that I'd much rather scores of cops get shot than one innocent citizen in their home. That's not even a tough call for me. They chose to be cops, and they chose to remain cops and enforce these policies. They can choose not to be cops at any time.
However, this is entirely irrelevant to the matter at hand. Because "right to resist" or no the citizen is still fucking going to get shot. Period. You think the possibility of resistance is going to dissuade SWAT teams from doing breaches and no-knock entries? Why do you think they do those in the first fucking place? Yes, it's partly to preserve evidence. But the tactics are also intended to overwhelm any possible resistance.
I see this situation playing out similar to this, because these kinds of laws, while we've been doing them for a while in practice, actually stamping it down as "yes this is how we need to do it." is just going to open up a huge slippery slope:
Cop sees guy talking on cell phone or speeding
Follows him home
Knocks on door, informs guy he was speeding and says he's here to search for drugs because he looks like he was driving under the influence
Guy tells cop to fuck off, cop calls for backup, arrest guy
This story hits newspapers
Two weeks later same thing happens again except this time cop gets shot in the face as soon as he identifies himself as a cop
Two months later, cops do a no knock entry on a family of 3, a single mother and her two children, the end up in critical condition and one or both of the children are dead. Massive reforms to the 4th amendment take place and warrants become hard to get and cops aren't allowed to bring anything more than night sticks. Eventually cops aren't allowed guns.
Granted that's all motherfucking hyperbole but I am so desensitized to bullshit cops at this point I don't see how it won't happen. Especially after that marine was basically butchered because cops are retarded.