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.
Hahaha, you think people will care when a cop guns down a black or mexican family, because that's what will happen, and the news won't care.
bowen, I'm not trying to harp on this overly much, but I think we should be clear on this point. What happened in Indiana is that a law was struck down not created. So actually, there is the lack of a law providing citizens with the right to violently resist illegal police action in Indiana.
Their intention, in my interpretation, was to make it illegal even if the law doesn't say it directly. If that wasn't their intention, then there was no reason to strike down the original law.
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
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.
Whoa man, let's both back down the vitriol in the rhetoric here so we can have some semblance of a conversation. ;-)
I'm 100% sure that the framers of the USC did not envision the state as having a monopoly on the use of force, but in the intervening 200+ years things have changed a bit and now a "Monopoly On Violence" is a widely accepted identifying feature of a Nation State.
Here's a wiki quote from the Monopoly on Violence article:
The monopoly on violence (German: Gewaltmonopol des Staates) is the definition of the state expounded by Max Weber in Politics as a Vocation, which has been predominant in philosophy of law and political philosophy in the twentieth century.[citation needed]
It defines a single entity, the state, exercising authority on violence over a given territory, as territory was also deemed by Weber to be a characteristic of state. Importantly, such a monopoly must occur via a process of legitimation, wherein a claim is laid to legitimise the state's use of violence.
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'.
Basically, no.
99.999% of illegal acts do not warrant the death penalty and then only after a lengthy, expensive trial.
There should be no law that just hands over the reigns of the most final punishment possible to Joe Dumbass McAmerican, except when Joe is literally fending for his fucking life. Suffice to say, I totally disagree with you and I think most U.S. citizens disagree with you, since most states don't legally allow that kind of treatment of trespassers, just a few crazy cowboy states like Texas. Most states recognize that it is far preferable for people to call the cops in trespassing cases and that it is far preferable to only allow self-defense as a legal excuse for killing or injuring a trespasser.
Killing and harming people, in general, are not morally acceptable behaviors and the only exception that any reasonable person would allow to that very good rule of thumb is self defense, for equally good reasons. You don't need a law that assumes that all trespassers intend harm to a homeowner, because that situation is covered by the self-defense exception. Such laws are terrible because they do nothing but increase the likelihood of homeowners killing and injuring otherwise innocent trespassers, because those laws simply serve to shield homeowners from prosecution for mistakenly killing or harming an innocent person. Frankly, if you make the call on killing or hurting someone you think is acting illegally but is not harming you or your family (ie. a trespasser), then you should do the time, every time, even if you get life in prison for it.
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.
Despite the way I said that, I don't feel I can accuse anyone of "taking their eye off the ball" in this thread, so I apologize for that.
We'll have to agree that we disagree over the implications of the ruling, but I'm pretty confident that the net effect will be ... nothing:
First, the ruling only applies in Indiana.
Second, the ruling simply strikes down both that state's "kill thems trespassers!" law, if there was one, and strikes down the common law in Indiana that says you have the right to violently resist illegal actions by law enforcement. Also, this ruling is at the state level and therefore says nothing at all about the U.S. constitution and the 4th Amendment whatsoever. Frankly this is good and expected, because the Indiana Supreme Court has no authority to rule based on any constitution other than the Indiana State Constitution. Certainly the Indiana Supreme Court can't invalidate 4th amendment protections on its own, and attempts to do so can be thwarted in federal court.
I agree that the 4th amendment is really critical for our protection against the excesses of the states, but there is a trade-off because the more we restrict police action the less able they are to do their job of protecting the public from criminals. Also, I don't see this a giving an inch, because I don't think we give up shit under this ruling that we haven't already lost by de facto police/justice systems practices.
Clearly, I feel that this issue is nowhere near the scope or level of evil embodied by civil forfeiture, since civil forfeiture essentially trumps and invalidates the 4th amendment almost entirely. This is why I keep mentioning it and hammering home the point that it is a huge deal and much more important than the Indiana ruling, because that's the reality.
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 am implying that the potential consequences weigh upon the decision no matter how much we pretend that they do not. They might not do so in a conscious way, but they do.
This is also the reason that "curiously" very few people argue that what they themselves do is immoral. Its how rich people can say with a straight face that the accumulation of wealth is moral. This is not some unknown effect, if we were talking about any other group of people each one of you would acknowledge that it goes on.
Also, this ruling is at the state level and therefore says nothing at all about the U.S. constitution and the 4th Amendment whatsoever
Wrong. It doesn't affect the rest of the states but the ruling was made based on the 4th amendment. It explicitly applies to the fourth amendment and other states are free to use this as precedent if they so choose[because that is the way that common law works, shit you can cite international law as precedent in some cases]
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.
Except that if the entry was legal then there was no reason for the SCOI to review it since there was no question in law to be answered. Which means that yes, they really just could have said "the entry was legal, go home now"
Their intention, in my interpretation, was to make it illegal even if the law doesn't say it directly. If that wasn't their intention, then there was no reason to strike down the original law.
No, the law pretty directly says that you can't assault an officer, nor can you resist arrest. The Court just said that if you've assaulted a cop who was trying to enter your home, and you're trying to build a defense around a presumed common-law right to use force against a cop entering your home, well, there isn't any such right, nor should there be, so that isn't a defense.
Except that if the entry was legal then there was no reason for the SCOI to review it since there was no question in law to be answered. Which means that yes, they really just could have said "the entry was legal, go home now"
This statement is blatantly nonsensical. If the entry was legal, there was no reason for the SCOI to review it, so the SCOI should have reviewed and said that the entry was legal?! That is actually the exact opposite of how judicial review works.
Both the State of Indiana (i.e., the trial prosecution) and the Appellate Court agreed on a couple things here: 1) The entry was illegal, and 2) Barnes committed battery. On the other hand, no official decision was really made (or needed) declaring the illegality of entry. It was just presumed illegal. Where they disagreed was in whether or not the illegality of entry even mattered in the charge against Barnes for committing battery. The trial court felt it was menaingless because precedent already indicated that battery, including pushing a cop, was beyond reasonable resistance. The Appellate said that the degree of reasonable resistance. If SCOI had said, "well, it was actually legal," they would not be resolving that dispute. Furthermore, they would have to explain exactly why the felt that both of the lower courts were wrong, in such a manner as to re-interpret exigent circumstances laws and set new precedent on determining exigent circumstances. The Supreme Court gave no indication that they had any arguments there.
In fact, SCOI indicated that whether or not the entry was legal was still an open issue, with evidence on both sides, and without any misapplication of law, and hence it remains a matter for trial juries to decide.
To sum up (and these aren't quotes, they are re-phrasing and summarizing):
Trial Court: "It was an illegal entry, it was battery, and the right to resist does not include battery against an officer. Anything deemed 'battery' by a jury is thereby de facto beyond reasonable resistance, so legality of entry doesn't matter, all that matters is whether he committed battery. So we don't need to inform the jury that Barnes had a right to resist."
Appeals Court: "We review the circumstances of the entry and agree that the evidence supports the conclusion that it was illegal. We also agree that battery occurred, and it was similar to other batteries in other cases that were deemed beyond reasonable resistance. But it is up to the jury to decide if the resistance was reasonable, not the judge, and a guilty determination on battery does not necessarily mean the resistance was therefore beyond reasonable. The jury should have been well-informed on this, and failure to do so makes this a signficantly harmful error against Barnes."
Supreme Court: "We pretty much agree with how you guys came to your conclusions. It was battery, but the jury still should have been the decider of how reasonable the resistance was. This error was significant. There was evidence the entry was illegal. There was also evidence that the entry was legal, too. The jury could have made a decision that it was battery but he was innocent because it was reasonable resistance to an illegal entry, or they could have decided that the entry was legal but they didn't really think it was battery. So ruling the entry legal or not isn't the point. The point is whether or not the jury should have been instructed to recognize Barnes' right to use reasonable force to resist an unlawful entry, an instruction that would have been given regardless of any ultimate determination of the legality of entry. We don't disagree with any of the Appellate Court's reasoning or use of precedent there. Everything so far is great. BUT... this 'right to resist unlawful entry...' it isn't written in any act of legislature, it is law only from lower-court decisions based on common-law assumptions, and this court has never reviewed or decided on such a thing. If we're going to determine that a judge should have given instruction about it, we need to decide at our level if it even exists. Now that we have reviewed it, we say bollocks. So on the issue of whether or not the trial judge should have instructed the jury about it, he shouldn't have. Not because the entry was actually legal. It seems that it might have been legal, or not, but for the purposes of the Appellate Court's analysis of whether or not Barnes was significantly harmed by an error, we see no need to review or overturn anything, and therefore insofar as it matters here, we're fine accepting it as an illegal entry and we're fine with all the arguments to that effect. No, the judge didn't need to give the instruction, because the instruction was simply false. In modern jurisprudence, it makes no sense to recognize a right to forceful resistance, so we don't recognize one."
This statement is blatantly nonsensical. If the entry was legal, there was no reason for the SCOI to review it, so the SCOI should have reviewed and said that the entry was legal?! That is actually the exact opposite of how judicial review works.
You've never seen a standing review? Do you think cases come to SCOTUS without SCOTUS looking at them?
My point was that if the entry was legal then there was no issue, SCOI would have just said "hey the entry was legal, why did you bring this shit to me, get it out of here".
And in fact they could have done so if the entry had not been illegal. And not just "no official decision" but actually illegal. 100% bonafide illegal. As you bring to the forefront.
Both the State of Indiana (i.e., the trial prosecution) and the Appellate Court agreed on a couple things here: 1) The entry was illegal, and 2) Barnes committed battery. On the other hand, no official decision was really made (or needed) declaring the illegality of entry.
Actually if the State of Indiana and the Courts agreed that the entry was illegal. I.E. if the sate decided itself that the entry was illegal then yes, there was an official decision that the entry was illegal. That was the official decision. Once the prosecution accepts the defendants defense you can't go back on it.
In which case SCOI could have just not heard the case, they could have said "hey, if the State was dumb enough to accept that the entry was illegal then tough fucking luck, get this shit out of here".
They chose not to do so, and in doing so chose to reduce the 4th amendment rights of citizens in Indiana. They could have also chosen to reaffirm the standing common law. They chose not to.
I'm actually still confused as to how this "reduced" fourth amendment protections in the slightest. This ruling has zero bearing whatsoever as to the legality of searches. As has been stated repeatedly, all it did was remove "immediate violence" as a remedy to a violation of the fourth amendment, not revise what is and is not such a violation.
mcdermott on
0
ShadowfireVermont, in the middle of nowhereRegistered Userregular
I'm actually still confused as to how this "reduced" fourth amendment protections in the slightest. This ruling has zero bearing whatsoever as to the legality of searches. As has been stated repeatedly, all it did was remove "immediate violence" as a remedy to a violation of the fourth amendment, not revise what is and is not such a violation.
I'd say that it damages the ability to use the second amendment to enforce the fourth, but.. eh..
I'm actually still confused as to how this "reduced" fourth amendment protections in the slightest. This ruling has zero bearing whatsoever as to the legality of searches. As has been stated repeatedly, all it did was remove "immediate violence" as a remedy to a violation of the fourth amendment, not revise what is and is not such a violation.
It didn't. It removed a supposed "remedy" to 4th amendment violations - a "remedy" which as I noted earlier is completely useless anyway since it's not like the police will leave you alone if you turn violent (quite the opposite). And it was already illegal for all intensive porpoises anyway, the judges just formally acknowledged it.
The 'OMG 4TH AMENDMENT' reaction is from people who, for any number of reasons, dislike the police so strongly that any ruling that broadens their reach draws their ire. Even if the ruling doesn't really change anything, and even if there's a perfectly good reason for it.
And while I'm posting, let me point out to everyone that the purpose of formalizing this rule isn't to give the cops more power. It's not directed at them at all - as I said earlier, I don't think they're going to change their approach at all, since they could still be attacked by angry homeowners regardless, and they can still be sued after the fact if the search was illegal. The ruling is aimed at homeowners, telling them that resisting the cops will never end well, because they're committing a crime even if they're completely right. And since resisting the cops only makes things more dangerous for both parties involved, this is a good thing.
I'm actually still confused as to how this "reduced" fourth amendment protections in the slightest. This ruling has zero bearing whatsoever as to the legality of searches. As has been stated repeatedly, all it did was remove "immediate violence" as a remedy to a violation of the fourth amendment, not revise what is and is not such a violation.
I'd say that it damages the ability to use the second amendment to enforce the fourth, but.. eh..
When "violence" can be defined as you physically preventing a cop from entering by shoving the door shut and locking it... I have issues
I'm actually still confused as to how this "reduced" fourth amendment protections in the slightest. This ruling has zero bearing whatsoever as to the legality of searches. As has been stated repeatedly, all it did was remove "immediate violence" as a remedy to a violation of the fourth amendment, not revise what is and is not such a violation.
There was an implied right to privacy established so that people cannot enter your home without permission, and (to some degree or another) you have a right to resist such entries. Law enforcement officers are able to violate that right when authorized to do so by a warrant.
What's changed is that now you cannot resist them. Being unable to stand up for yourself when your rights are being violated (it seems to me) inherently reduces the protections of those rights.
Additionally if I could just back this up slightly: it seems there is an assumption that a reasonable person cannot read and understand a search warrant. They are notthat complicated. They list either the person or the property to be searched, what is being searched for, and when a search is allowed. Since I live in California and this ruling doesn't affect me directly, if a cop shows up to my door (apt 115) with a warrant listing the address to be searched as apt 151 I can tell him to fuck off and shut the door. Under this interpretation of the law a citizen of Indiana could not do the same.
Since this puts the responsibility of verifying such things in the hands of the police, effectively saying to the average citizen that they are unqualified to make judgments in the matter of whether the address is correct, it seems to me that this is a rather severe restriction of the protections provided by the 4th amendment.
I would also like to say that I have a problem with automatically assuming that we should be shooting cops for entering our homes, or shooting anyone without finding out what's going on first. But I think that might be for a different thread so I'll leave it.
I'm actually still confused as to how this "reduced" fourth amendment protections in the slightest. This ruling has zero bearing whatsoever as to the legality of searches. As has been stated repeatedly, all it did was remove "immediate violence" as a remedy to a violation of the fourth amendment, not revise what is and is not such a violation.
There was an implied right to privacy established so that people cannot enter your home without permission, and (to some degree or another) you have a right to resist such entries. Law enforcement officers are able to violate that right when authorized to do so by a warrant.
What's changed is that now you cannot resist them. Being unable to stand up for yourself when your rights are being violated (it seems to me) inherently reduces the protections of those rights.
True, I suppose. But that's not a meaningful change in your effective rights, since "resisting them" was pretty much just a free ticket to your own asskicking, anyway. This problem is much more effectively solved, at least in a civilized society, by strengthening the administrative and civil remedies available to the target of an unlawful search/entry.
It would have the same or more deterrent effect as maintaining the right to get your ass kicked, with less of you getting your ass kicked.
Additionally if I could just back this up slightly: it seems there is an assumption that a reasonable person cannot read and understand a search warrant. They are notthat complicated. They list either the person or the property to be searched, what is being searched for, and when a search is allowed. Since I live in California and this ruling doesn't affect me directly, if a cop shows up to my door (apt 115) with a warrant listing the address to be searched as apt 151 I can tell him to fuck off and shut the door. Under this interpretation of the law a citizen of Indiana could not do the same.
Since this puts the responsibility of verifying such things in the hands of the police, effectively saying to the average citizen that they are unqualified to make judgments in the matter of whether the address is correct, it seems to me that this is a rather severe restriction of the protections provided by the 4th amendment.
I'd be willing to bet that if you pointed out the mistake to the cop, they're not going to still search the place for shits and giggles. And if they do, the proper remedy is (once again) in the courts or administrative, not Thuderdome.
Especially since you are seldom going to win a physical fight, anyway.
I mean, I guess you could go with assault charges against the individual cops for any use of force during such an entry, but that would make it damn hard for them to do their jobs; better is definitely (I'll say it again and again) strengthening the penalties for an illegal entry (against the city, department, and in cases of negligence/malfeasance the individual officers as well)...this provides the same negative feedback against illegal searches, but with less broken collarbones and while maintaining the ability for police to do their job.
AHAHAHAHAHAHA strengthen remedies to unlawful search/entry. That's a good one. Remedies to the cops breaking laws. You're a funny guy, you. No, what happens is that there is a lawsuit, the police lose some money, and then a while later the law is changed to protect the police from future lawsuits.
AHAHAHAHAHAHA strengthen remedies to unlawful search/entry. That's a good one. Remedies to the cops breaking laws. You're a funny guy, you. No, what happens is that there is a lawsuit, the police lose some money, and then a while later the law is changed to protect the police from future lawsuits.
And allowing you to throw down against those pigs sure will fix that, yesireebob!
AHAHAHAHAHAHA strengthen remedies to unlawful search/entry. That's a good one. Remedies to the cops breaking laws. You're a funny guy, you. No, what happens is that there is a lawsuit, the police lose some money, and then a while later the law is changed to protect the police from future lawsuits.
And allowing you to throw down against those pigs sure will fix that, yesireebob!
Engaging a cop in some physical manner always helps things. Scares 'em so they know what's what, and who's the real boss.
Much like the death penalty is a deterrent for people committing horrible crimes. Compliance via fear of an outcome is the desirable method of deterrance, dontcha know?
Much like the death penalty is a deterrent for people committing horrible crimes. Compliance via fear of an outcome is the desirable method of deterrance, dontcha know?
Well, the people who believe/support this kind of thinking more than anyone else are the LEOs themselves. So it might actually apply to them.
They chose not to do so, and in doing so chose to reduce the 4th amendment rights of citizens in Indiana. They could have also chosen to reaffirm the standing common law. They chose not to.
Well, I don't think they reduced any 4th Amendment rights. People have as much right to be secure in their papers or whatever as they ever did. This point needs to be hammered until it is fully understood. They did not reduce Indiana citizens' right to privacy. They did reduce a common-law right to use physical force to resist police. That right isn't just about privacy or Fourth Amendment. The right to use reasonable force in self-defense span all sorts of different legal issue. People have less rights now to use force again police officers. Specifically, against those they think are in violation of the 4th Amendment. But again, it isn't 4th Amendment rights being adjusted, it's rights to forced resistance.
Robbing someone at gunpoint is illegal. I don't call that a reduction of 2nd Amendment rights just because robbing with a gun entails bearing arms. It's circumstantial, not core to the issue. Similarly, saying I can't use force to resist an unlawful entry is about my rights to use force against officers, not about my 4th Amendment rights. The very fact that we're talking about unlawful entry is evidence that we aren't reducing 4th Amendment rights here. Illegal entry is circumstance; the right to fight with cops (or, broader, you right to self-defense) is what was reduced.
if a cop shows up to my door (apt 115) with a warrant listing the address to be searched as apt 151 I can tell him to fuck off and shut the door. Under this interpretation of the law a citizen of Indiana could not do the same.
Not exactly. A citizen of Indiana can still shut the door. They just can't use force against the officer. Although they don't repeat the full definition, and instead use the misleading simplified phrase "resisting unlawful entry," the citations and legal definitions make it clear that what they are talking about is using a reasonable level of physical force against the officer in order to resist him. So if the officer barges in and you try to slam the door on his body, yeah. If you shut the door or just don't open it, no.
More importantly, the alternative the court was alluding to is the situation in which you are drunk or tired or some other impairment which makes you think that the address is wrong, when actually it isn't, and you then deciding that you have a right to fight with the cop because of it. The court is saying, no, maybe the address is wrong and maybe it isn't, you can certainly make an issue of that in due course, but please do not decide to fight physically with the cop over it right now, okay? Someone will get hurt, and so we're not going to allow it.
Since this puts the responsibility of verifying such things in the hands of the police, effectively saying to the average citizen that they are unqualified to make judgments in the matter of whether the address is correct, it seems to me that this is a rather severe restriction of the protections provided by the 4th amendment.
No, the responsibility is in the hands of judges and juries. Meanwhile, no fighting cops over it.
So, does this just apply to resisting police who conduct illegal searches or does is explicitly prohibit violently resisting cops entering your home to do other blatantly illegal acts? Like maybe this guy...
I'll grant that violently resisting cops is a great way to get shot or arrested and not all that likely to keep them from doing whatever the fuck they were going to do anyway. That's not the best argument that it should actually be illegal to do so.
So, does this just apply to resisting police who conduct illegal searches or does is explicitly prohibit violently resisting cops entering your home to do other blatantly illegal acts? Like maybe this guy...
I'll grant that violently resisting cops is a great way to get shot or arrested and not all that likely to keep them from doing whatever the fuck they were going to do anyway. That's not the best argument that it should actually be illegal to do so.
This ruling changed nothing about your right to actual self-defense, as in defense of person. Any time a police officer uses force that is unnecessary to affect an arrest or search (or otherwise unjustified), you generally can legally defend yourself (or others). That's just a basic inherent human right to self-defense, and certainly rape would be covered there.
This took away your right to use force in defense of property, or perhaps just privacy, not person.
Of course, there is a slight problem, that your example brings up: at what point can you defend yourself? See, by the time it's obvious that the officer is going to use excessive force and assault you, it's probably far too late (in this case, the deputy already had his gun out). Plus, if you use force to prevent an assault, how do you prove it was going to happen? In other words, are you allowed to defend yourself before he tries to rape you? Or do you have to wait until you are actually raped, to prove that rape was the intent?
It's a pretty serious issue with the ruling, I'll admit.
The ruling effectively centers on this issue, though, without directly discussing it much. It's a basic reasonable-man kind of scenario. Looking at the circumstances apparent at the time that the alleged battery of a police officer occurred, could a reasonable person conclude that the officer was using excessive force, and thus the battery was self-defense? That's the only reasonable approach, and it can even apply if the arrest or entry ends up being deemed legal. It wouldn't include something like a disagreement over the interpretation of exigent cirumstances or probable causes, but it ideally would still include a cop walking up to you and slapping you around for no reason.
Before, Indiana case law basically said that at any time after the event, if the entry was deemed illegal, then that retroactively makes the officer guilty of using excessive force, and retroactively grants the defendant a right to have used reasonable force against the officer in self-defense.
So, a polite officer who said, "I have a warrant to enter these premises," wipes his feet, and calmy steps inside, was in fact using excessive force under previous case law, and deserved to be shoved against a wall and tossed off the porch, for no other reason than because two years after the event, an appeals court determined that there was a clerical error in the warrant. The court pointed out not only the absurdity of this (which might be okay by itself as a matter of due process), but also the fact that adhering to it is likely to do nothing more than escalate violence and cause more injury and death and court cases, with little or no benefit. Instead they seemed to be following a solid trend across all modern legal systems, of: if the cop is just performing a typical entry or typical arrest, then you don't get to use force to resist, regardless of whether or not the cop was actually acting outside his legal authority. If the cop is doing something clearly atypical, like beating you even when you're trying to comply, or raping you, that may still fall under common-law rights to resist.
Posts
Hahaha, you think people will care when a cop guns down a black or mexican family, because that's what will happen, and the news won't care.
This is America, where we're tough on crime.
Their intention, in my interpretation, was to make it illegal even if the law doesn't say it directly. If that wasn't their intention, then there was no reason to strike down the original law.
I'm 100% sure that the framers of the USC did not envision the state as having a monopoly on the use of force, but in the intervening 200+ years things have changed a bit and now a "Monopoly On Violence" is a widely accepted identifying feature of a Nation State.
Here's a wiki quote from the Monopoly on Violence article: Basically, no.
99.999% of illegal acts do not warrant the death penalty and then only after a lengthy, expensive trial.
There should be no law that just hands over the reigns of the most final punishment possible to Joe Dumbass McAmerican, except when Joe is literally fending for his fucking life. Suffice to say, I totally disagree with you and I think most U.S. citizens disagree with you, since most states don't legally allow that kind of treatment of trespassers, just a few crazy cowboy states like Texas. Most states recognize that it is far preferable for people to call the cops in trespassing cases and that it is far preferable to only allow self-defense as a legal excuse for killing or injuring a trespasser.
Killing and harming people, in general, are not morally acceptable behaviors and the only exception that any reasonable person would allow to that very good rule of thumb is self defense, for equally good reasons. You don't need a law that assumes that all trespassers intend harm to a homeowner, because that situation is covered by the self-defense exception. Such laws are terrible because they do nothing but increase the likelihood of homeowners killing and injuring otherwise innocent trespassers, because those laws simply serve to shield homeowners from prosecution for mistakenly killing or harming an innocent person. Frankly, if you make the call on killing or hurting someone you think is acting illegally but is not harming you or your family (ie. a trespasser), then you should do the time, every time, even if you get life in prison for it.
Despite the way I said that, I don't feel I can accuse anyone of "taking their eye off the ball" in this thread, so I apologize for that.
We'll have to agree that we disagree over the implications of the ruling, but I'm pretty confident that the net effect will be ... nothing:
First, the ruling only applies in Indiana.
Second, the ruling simply strikes down both that state's "kill thems trespassers!" law, if there was one, and strikes down the common law in Indiana that says you have the right to violently resist illegal actions by law enforcement. Also, this ruling is at the state level and therefore says nothing at all about the U.S. constitution and the 4th Amendment whatsoever. Frankly this is good and expected, because the Indiana Supreme Court has no authority to rule based on any constitution other than the Indiana State Constitution. Certainly the Indiana Supreme Court can't invalidate 4th amendment protections on its own, and attempts to do so can be thwarted in federal court.
I agree that the 4th amendment is really critical for our protection against the excesses of the states, but there is a trade-off because the more we restrict police action the less able they are to do their job of protecting the public from criminals. Also, I don't see this a giving an inch, because I don't think we give up shit under this ruling that we haven't already lost by de facto police/justice systems practices.
Clearly, I feel that this issue is nowhere near the scope or level of evil embodied by civil forfeiture, since civil forfeiture essentially trumps and invalidates the 4th amendment almost entirely. This is why I keep mentioning it and hammering home the point that it is a huge deal and much more important than the Indiana ruling, because that's the reality.
I am implying that the potential consequences weigh upon the decision no matter how much we pretend that they do not. They might not do so in a conscious way, but they do.
This is also the reason that "curiously" very few people argue that what they themselves do is immoral. Its how rich people can say with a straight face that the accumulation of wealth is moral. This is not some unknown effect, if we were talking about any other group of people each one of you would acknowledge that it goes on.
Wrong. It doesn't affect the rest of the states but the ruling was made based on the 4th amendment. It explicitly applies to the fourth amendment and other states are free to use this as precedent if they so choose[because that is the way that common law works, shit you can cite international law as precedent in some cases]
Except that if the entry was legal then there was no reason for the SCOI to review it since there was no question in law to be answered. Which means that yes, they really just could have said "the entry was legal, go home now"
This statement is blatantly nonsensical. If the entry was legal, there was no reason for the SCOI to review it, so the SCOI should have reviewed and said that the entry was legal?! That is actually the exact opposite of how judicial review works.
Both the State of Indiana (i.e., the trial prosecution) and the Appellate Court agreed on a couple things here: 1) The entry was illegal, and 2) Barnes committed battery. On the other hand, no official decision was really made (or needed) declaring the illegality of entry. It was just presumed illegal. Where they disagreed was in whether or not the illegality of entry even mattered in the charge against Barnes for committing battery. The trial court felt it was menaingless because precedent already indicated that battery, including pushing a cop, was beyond reasonable resistance. The Appellate said that the degree of reasonable resistance. If SCOI had said, "well, it was actually legal," they would not be resolving that dispute. Furthermore, they would have to explain exactly why the felt that both of the lower courts were wrong, in such a manner as to re-interpret exigent circumstances laws and set new precedent on determining exigent circumstances. The Supreme Court gave no indication that they had any arguments there.
In fact, SCOI indicated that whether or not the entry was legal was still an open issue, with evidence on both sides, and without any misapplication of law, and hence it remains a matter for trial juries to decide.
To sum up (and these aren't quotes, they are re-phrasing and summarizing):
Trial Court: "It was an illegal entry, it was battery, and the right to resist does not include battery against an officer. Anything deemed 'battery' by a jury is thereby de facto beyond reasonable resistance, so legality of entry doesn't matter, all that matters is whether he committed battery. So we don't need to inform the jury that Barnes had a right to resist."
Appeals Court: "We review the circumstances of the entry and agree that the evidence supports the conclusion that it was illegal. We also agree that battery occurred, and it was similar to other batteries in other cases that were deemed beyond reasonable resistance. But it is up to the jury to decide if the resistance was reasonable, not the judge, and a guilty determination on battery does not necessarily mean the resistance was therefore beyond reasonable. The jury should have been well-informed on this, and failure to do so makes this a signficantly harmful error against Barnes."
Supreme Court: "We pretty much agree with how you guys came to your conclusions. It was battery, but the jury still should have been the decider of how reasonable the resistance was. This error was significant. There was evidence the entry was illegal. There was also evidence that the entry was legal, too. The jury could have made a decision that it was battery but he was innocent because it was reasonable resistance to an illegal entry, or they could have decided that the entry was legal but they didn't really think it was battery. So ruling the entry legal or not isn't the point. The point is whether or not the jury should have been instructed to recognize Barnes' right to use reasonable force to resist an unlawful entry, an instruction that would have been given regardless of any ultimate determination of the legality of entry. We don't disagree with any of the Appellate Court's reasoning or use of precedent there. Everything so far is great. BUT... this 'right to resist unlawful entry...' it isn't written in any act of legislature, it is law only from lower-court decisions based on common-law assumptions, and this court has never reviewed or decided on such a thing. If we're going to determine that a judge should have given instruction about it, we need to decide at our level if it even exists. Now that we have reviewed it, we say bollocks. So on the issue of whether or not the trial judge should have instructed the jury about it, he shouldn't have. Not because the entry was actually legal. It seems that it might have been legal, or not, but for the purposes of the Appellate Court's analysis of whether or not Barnes was significantly harmed by an error, we see no need to review or overturn anything, and therefore insofar as it matters here, we're fine accepting it as an illegal entry and we're fine with all the arguments to that effect. No, the judge didn't need to give the instruction, because the instruction was simply false. In modern jurisprudence, it makes no sense to recognize a right to forceful resistance, so we don't recognize one."
My point was that if the entry was legal then there was no issue, SCOI would have just said "hey the entry was legal, why did you bring this shit to me, get it out of here".
And in fact they could have done so if the entry had not been illegal. And not just "no official decision" but actually illegal. 100% bonafide illegal. As you bring to the forefront.
Actually if the State of Indiana and the Courts agreed that the entry was illegal. I.E. if the sate decided itself that the entry was illegal then yes, there was an official decision that the entry was illegal. That was the official decision. Once the prosecution accepts the defendants defense you can't go back on it.
In which case SCOI could have just not heard the case, they could have said "hey, if the State was dumb enough to accept that the entry was illegal then tough fucking luck, get this shit out of here".
They chose not to do so, and in doing so chose to reduce the 4th amendment rights of citizens in Indiana. They could have also chosen to reaffirm the standing common law. They chose not to.
I'd say that it damages the ability to use the second amendment to enforce the fourth, but.. eh..
It didn't. It removed a supposed "remedy" to 4th amendment violations - a "remedy" which as I noted earlier is completely useless anyway since it's not like the police will leave you alone if you turn violent (quite the opposite). And it was already illegal for all intensive porpoises anyway, the judges just formally acknowledged it.
The 'OMG 4TH AMENDMENT' reaction is from people who, for any number of reasons, dislike the police so strongly that any ruling that broadens their reach draws their ire. Even if the ruling doesn't really change anything, and even if there's a perfectly good reason for it.
And while I'm posting, let me point out to everyone that the purpose of formalizing this rule isn't to give the cops more power. It's not directed at them at all - as I said earlier, I don't think they're going to change their approach at all, since they could still be attacked by angry homeowners regardless, and they can still be sued after the fact if the search was illegal. The ruling is aimed at homeowners, telling them that resisting the cops will never end well, because they're committing a crime even if they're completely right. And since resisting the cops only makes things more dangerous for both parties involved, this is a good thing.
When "violence" can be defined as you physically preventing a cop from entering by shoving the door shut and locking it... I have issues
There was an implied right to privacy established so that people cannot enter your home without permission, and (to some degree or another) you have a right to resist such entries. Law enforcement officers are able to violate that right when authorized to do so by a warrant.
What's changed is that now you cannot resist them. Being unable to stand up for yourself when your rights are being violated (it seems to me) inherently reduces the protections of those rights.
Additionally if I could just back this up slightly: it seems there is an assumption that a reasonable person cannot read and understand a search warrant. They are not that complicated. They list either the person or the property to be searched, what is being searched for, and when a search is allowed. Since I live in California and this ruling doesn't affect me directly, if a cop shows up to my door (apt 115) with a warrant listing the address to be searched as apt 151 I can tell him to fuck off and shut the door. Under this interpretation of the law a citizen of Indiana could not do the same.
Since this puts the responsibility of verifying such things in the hands of the police, effectively saying to the average citizen that they are unqualified to make judgments in the matter of whether the address is correct, it seems to me that this is a rather severe restriction of the protections provided by the 4th amendment.
I would also like to say that I have a problem with automatically assuming that we should be shooting cops for entering our homes, or shooting anyone without finding out what's going on first. But I think that might be for a different thread so I'll leave it.
True, I suppose. But that's not a meaningful change in your effective rights, since "resisting them" was pretty much just a free ticket to your own asskicking, anyway. This problem is much more effectively solved, at least in a civilized society, by strengthening the administrative and civil remedies available to the target of an unlawful search/entry.
It would have the same or more deterrent effect as maintaining the right to get your ass kicked, with less of you getting your ass kicked.
I'd be willing to bet that if you pointed out the mistake to the cop, they're not going to still search the place for shits and giggles. And if they do, the proper remedy is (once again) in the courts or administrative, not Thuderdome.
Especially since you are seldom going to win a physical fight, anyway.
I mean, I guess you could go with assault charges against the individual cops for any use of force during such an entry, but that would make it damn hard for them to do their jobs; better is definitely (I'll say it again and again) strengthening the penalties for an illegal entry (against the city, department, and in cases of negligence/malfeasance the individual officers as well)...this provides the same negative feedback against illegal searches, but with less broken collarbones and while maintaining the ability for police to do their job.
And allowing you to throw down against those pigs sure will fix that, yesireebob!
Much like the death penalty is a deterrent for people committing horrible crimes. Compliance via fear of an outcome is the desirable method of deterrance, dontcha know?
Well, the people who believe/support this kind of thinking more than anyone else are the LEOs themselves. So it might actually apply to them.
Robbing someone at gunpoint is illegal. I don't call that a reduction of 2nd Amendment rights just because robbing with a gun entails bearing arms. It's circumstantial, not core to the issue. Similarly, saying I can't use force to resist an unlawful entry is about my rights to use force against officers, not about my 4th Amendment rights. The very fact that we're talking about unlawful entry is evidence that we aren't reducing 4th Amendment rights here. Illegal entry is circumstance; the right to fight with cops (or, broader, you right to self-defense) is what was reduced.
Not exactly. A citizen of Indiana can still shut the door. They just can't use force against the officer. Although they don't repeat the full definition, and instead use the misleading simplified phrase "resisting unlawful entry," the citations and legal definitions make it clear that what they are talking about is using a reasonable level of physical force against the officer in order to resist him. So if the officer barges in and you try to slam the door on his body, yeah. If you shut the door or just don't open it, no.
More importantly, the alternative the court was alluding to is the situation in which you are drunk or tired or some other impairment which makes you think that the address is wrong, when actually it isn't, and you then deciding that you have a right to fight with the cop because of it. The court is saying, no, maybe the address is wrong and maybe it isn't, you can certainly make an issue of that in due course, but please do not decide to fight physically with the cop over it right now, okay? Someone will get hurt, and so we're not going to allow it.
No, the responsibility is in the hands of judges and juries. Meanwhile, no fighting cops over it.
I'll grant that violently resisting cops is a great way to get shot or arrested and not all that likely to keep them from doing whatever the fuck they were going to do anyway. That's not the best argument that it should actually be illegal to do so.
This ruling changed nothing about your right to actual self-defense, as in defense of person. Any time a police officer uses force that is unnecessary to affect an arrest or search (or otherwise unjustified), you generally can legally defend yourself (or others). That's just a basic inherent human right to self-defense, and certainly rape would be covered there.
This took away your right to use force in defense of property, or perhaps just privacy, not person.
Of course, there is a slight problem, that your example brings up: at what point can you defend yourself? See, by the time it's obvious that the officer is going to use excessive force and assault you, it's probably far too late (in this case, the deputy already had his gun out). Plus, if you use force to prevent an assault, how do you prove it was going to happen? In other words, are you allowed to defend yourself before he tries to rape you? Or do you have to wait until you are actually raped, to prove that rape was the intent?
It's a pretty serious issue with the ruling, I'll admit.
Before, Indiana case law basically said that at any time after the event, if the entry was deemed illegal, then that retroactively makes the officer guilty of using excessive force, and retroactively grants the defendant a right to have used reasonable force against the officer in self-defense.
So, a polite officer who said, "I have a warrant to enter these premises," wipes his feet, and calmy steps inside, was in fact using excessive force under previous case law, and deserved to be shoved against a wall and tossed off the porch, for no other reason than because two years after the event, an appeals court determined that there was a clerical error in the warrant. The court pointed out not only the absurdity of this (which might be okay by itself as a matter of due process), but also the fact that adhering to it is likely to do nothing more than escalate violence and cause more injury and death and court cases, with little or no benefit. Instead they seemed to be following a solid trend across all modern legal systems, of: if the cop is just performing a typical entry or typical arrest, then you don't get to use force to resist, regardless of whether or not the cop was actually acting outside his legal authority. If the cop is doing something clearly atypical, like beating you even when you're trying to comply, or raping you, that may still fall under common-law rights to resist.