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  #1  
Old 05-16-2011, 07:09 AM
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Interesting case just decided by the Indiana Supreme Court, saying that a citizen has no right to refuse or resist an unlawful entry into their home by police.

Indiana Supreme Court rules Hoosiers have no right to resist unlawful entry of their homes by police « Hot Air

For those of you who like to read the actual Opinion rather than getting your law from some reporter armchair lawyer, here it is.

They got this one way wrong in my opinion. I think it's destined for the US Supreme Court, and it would be a very scary thing if they refused to overturn it.
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Old 05-16-2011, 07:17 AM
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Sorry but what I read, they had every right to enter due to domestic violence. This was not an illegal entry.
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Old 05-16-2011, 07:52 AM
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Well, with all respect to your legal training, even the Supreme Court of Indiana acknowledged it as an unlawful entry. The justices just ruled that the victim of the unlawful entry had no right to resist it at the time it occurred.
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Old 05-16-2011, 07:54 AM
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So Barnes was outside the apartment and argued with the police. When he refused to let them into the apartment he was forced to the side and hit with a tazer. The direct quote from the Indiana Supreme Court is, “We hold that there is no right to reasonably resist unlawful entry by police officers.” So they admit to the entry being unlawful. So the only reason for the police to intervene was the 911 call. Barnes was already outside and the police had already seen Mrs. Barnes when she threw his duffle bag in his direction. So lesson learned from all of this? Police in Indiana are supported to do as they see fit despite our Fourth Amendment rights and the state is backing them up. I’m almost scared to see what will happen if this goes before the Supreme Court. Many people are going to see this as defending domestic violence offenders. The point is that there have to be lines that the law does not cross. The very fact that “unlawful entry” is being supported is scary to me in a way that makes me think of “1984” by George Orwell. And what is worse is that it looks like his jury passed judgment on him by citing “common law” over the Fourth Amendment. That scares me worst of all.
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Old 05-16-2011, 08:20 AM
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Ok, why would it be unlawful entry?

We have domestic violence. We have a suspect fleeing into an apartment to avoid possible arrest. We have a resident giving verbal approval to enter.

Why the court continued to call it unlawful may be due to the language in the complaint.

Had the situation been elevated to injury or death to the wife if the suspect had not been restrained, then there would have been lawsuits against the police for failure to act or else malfeasence.

According to some, chasing a suspect ought to stop once the perp is able to enter the safety of his residence.

Domestic violence is a crime. This could have been worse had the officers not taken the man into custody. Officers had reason, based on a 911 call and on scene observations and actions, to enter the home.

An unlawful entry would be where one has not done any wrong and there was no reason to enter a residence. Suppose someone is sleeping in their own home, committed no crime but police break in for whatever reason (wrong home, false information, etc), then the homeowner would have right to resist although doing so may result in injury or death.

Officers have their hands tied enough on proper procedure as it is but knowing an offense has been committed first hand gives them the right to enter.
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Old 05-16-2011, 08:53 AM
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At the bottom of Page 5 of the Opinion, the Court says that, they were not going to decide the legality of the entry into the house since they'd decided they'd was no right to resist an unlawful entry.

Then they go on, briefly, and make the entry sound pretty legal, at least a close call.

But, they never say it was or it wasn't.

Bob
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Old 05-16-2011, 09:05 AM
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While I do understand the 4'th Amendment argument, here are two words to mull over. Reasonable Suspicion.
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Old 05-16-2011, 09:09 AM
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Citizens cannot resist arrest either and it does not matter if the arrest later turns out to have been unlawful.

If a police officer says, "You're under arrest because someone is willing to sign a complaint against you and we have probable cause to believe the complaint it true." Then a person needs to submit to the arrest. Resisting arrest is always a bad idea and cannot be won.

Later it may be decided with further info that the arrestee may be released without being charged.

But to physically fight the arrest just makes matters worse. I've seen people charged with only resisting when the original matter never even led to charges.

The same goes for unlawful entry. If the entry turns out to be unlawful, then any evidence (fruit of the poisonous tree) will not be allowed in court. Same thing for an arrest stemming from an unlawful entry.

The time to decide if an arrest or an unlawful entry is correct or not is not at the time when the situation is evolving.
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Old 05-16-2011, 09:11 AM
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Quote:
Originally Posted by Bratastic007 View Post
Interesting case just decided by the Indiana Supreme Court, saying that a citizen has no right to refuse or resist an unlawful entry into their home by police.

I have always understood that I may refuse ('No, you may not enter my home') but I had no legal avenue to resist (Physically interfere).

In such a situation... if it is legal for a citizen to physically interfere with authorities then what, if any, are the limits? Would it be legal to put cop to the floor and disarm him if he began to walk through the front door after being told no?
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Old 05-16-2011, 09:38 AM
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The husband was not inside the residence, he was outside. The wife was inside and later exited only to go back inside. The patrolman (officer, deputy, etc.) came on the scene because of the 911 call. From what was written about the scene it sounds to me like the issue was already fizzling out. The husband was already about to depart and the wife was in her own way expediting the process. Had the patrolman observed the scene to ensure nothing escalated then it sounds like that would have been the end of it. Instead he chose to force entry upon the residence without the homeowners consent. If the husband had been fleeing inside then I feel it safe to say he would have been deeper inside than just inside the doorway. Not having been there myself I want to back the homeowner on this issue only because the patrolman seems to have excited the situation rather than defuse it. From having lived for enough years in apartment complexes where police are called I have witnessed enough interactions to have seen patrolmen defuse a situation upon entering the scene. Maybe there is more to this story than we are being told that would prove the patrolman’s actions. But the fact remains that the Indiana State Supreme Court chose to write “unlawful entry” into their report on this situation.

I don’t mean to disparage any police in any of my words. Police have a sometimes dirty job dealing with the ugly side of society. They aren’t called because you are acting your best. They do they best they can and many times have to make snap judgments. I get it. Even if we do find that this patrolman acted inappropriately there is no reason to badmouth him or his department. Mistakes can be made and learned from. The very cause of this whole snafu is that someone wasn’t acting right. But what is causing more discontent is the possible level of damage this could all cause. If this very minor sounding situation could somehow start upsetting cases present or future, and if our Supreme Court favors the Indiana’s wording this is a huge issue.

Now I am bowing out on this since I don’t mean to ruffle any of our members who have or currently wear the LEO uniform. I greatly appreciate the job you do and from the other side I know we expect more from them than sometimes we should. But I still hope we can all see how small local issues can snowball into bigger problems.
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Old 05-16-2011, 09:42 AM
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Unless I missed it in the facts of the Opinion, the husband did not lay hands on the wife, nor did she allege it. He was acting violently, and she did the right thing by calling the police.

When the police arrived, they encountered both the man and the woman outside of their apartment. The man was trying to leave, and the woman came out and demanded that he come back and get the rest of his stuff. The officers did not observe that the woman had been the victim of any physical violence, nor did she claim that was the case at that time either. The man is hollering at the police, which isn't ever a good idea, but under the circumstances I think most people would be a bit stressed out. Here he is trying to just leave his ex-wife's place once and for all (stressful enough), but then the cops show up because your wife called them and reported domestic violence (yet you hadn't touched her).

The man and woman both return to the apartment, ostensibly for the purpose of retrieving the man's last few things so he can go. The man is clear that he does not want the police to enter his home. The woman is less clear, although she never gives outright consent.

The police could have waited at the door until the man got his things and was ready to go. They could have walked him to his car and saw him off, with a friendly warning not to return that night.

Instead, the police escalated the situation by forcing their way into the house against the wishes of the home owner. When he resisted, it turned physical, and they escalated yet again by tasering him.

If the police thought that the woman had been assaulted, they should have arrested the man in the parking lot. If he had fled the arrest into his home, they would have exigent circumstances to enter the home without a warrant. Or, if the police had stood at the door until they had witnessed violence against the wife (or any other illegal activity), they would have had authority to enter as well.

More likely, the police were a bit sore at having been yelled at by this guy in the parking lot, and did not take kindly to being refused entrance to the home. Instead of being the responsible party, they chose to exercise their authority and force entry.
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Old 05-16-2011, 09:49 AM
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So let me ask a hypothetical question. If the defendant went back into the house, and the police did not follow, how would the public feel if he had procured a gun, or other weapon, and killed someone? Or made it necessary for the police to shoot him? Those of us who have experience with domestic violence understand the potential for extreme violence is always present, that people don't always act rationally, and that as a LEO you have an obligation to control the situation, not wait for the violence to occur. From reading this case it appears to me the police did just what they were supposed to do and anyone who thinks otherwise has no experience in this field. Being a LEO is difficult enough with 1/2 the population being critical of what you did and the other 1/2 criticizing what you didn't do.
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Old 05-16-2011, 09:55 AM
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Quote:
Originally Posted by ChattanoogaPhil View Post
I have always understood that I may refuse ('No, you may not enter my home') but I had no legal avenue to resist (Physically interfere).

In such a situation... if it is legal for a citizen to physically interfere with authorities then what, if any, are the limits? Would it be legal to put cop to the floor and disarm him if he began to walk through the front door after being told no?
A police officer who enters your home unlawfully has the same rights as anyone else who enters your house unlawfully. This is not to say that I wouldn't handle the situations differently.

The Founding Fathers saw fit to include the 4th Amendment into the Bill of Rights because they wanted it to be clear and unambiguous that citizens of the United States would have security and safety in their persons, home, and possessions. Over the years, the Supreme Court has carved out a number of exceptions to this principle. These exceptions all basically boil down to this: "Unless a citizen consents, or there is a very serious and clear exigent circumstance, no state actor may enter your home without a valid warrant issued by a judge in full review of the facts."

Does this mean that criminals sometimes get the long end of the stick over law enforcement? Yes. But the 4th Amendment protects the homes of every single US citizen, the vast majority of whom are not criminals.

Does the 2nd Amendment mean that sometimes guns end up in the wrong hands? Yes. But the 2nd Amendment protects the rights to keep and bear arms of all US citizens, the vast majority of whom are not criminals.

We need to be extremely careful about whittling away ANY of our rights. It may not always be pretty, but our rights are what make us Americans, and what make us free.
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Old 05-16-2011, 10:00 AM
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Quote:
Originally Posted by Steve in Vermont View Post
So let me ask a hypothetical question. If the defendant went back into the house, and the police did not follow, how would the public feel if he had procured a gun, or other weapon, and killed someone? Or made it necessary for the police to shoot him? Being a LEO is difficult enough with 1/2 the population being critical of what you did and the other 1/2 criticizing what you didn't do.
I sympathize with the fact that being a police officer is a tough job. But I don't want to encourage a society where police violate someone's Constitutional Rights because of what they MIGHT do.
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Old 05-16-2011, 10:00 AM
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I have been in Law Enforcement for 42 years plus and things like this really get me going so I have to be careful. Whenever someone comes up to me and says they know about a certain incident or they heard something, the FIRST THING I ASK THEM IS THIS: WERE YOU THERE AND DID YOU WITNESS EVERYTHING THAT TOOK PLACE. 99% of the time the answer is NO. I then tell them they don't know what happened and they have no right to even talk about the incident or even have an opinion BECAUSE THEY WERE NOT THERE. I MIGHT BE WRONG BUT THAT'S THE WAY I FEEL. I better stop with that........CookE
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Old 05-16-2011, 10:06 AM
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Originally Posted by CookE View Post
I have been in Law Enforcement for 42 years plus and things like this really get me going so I have to be careful. Whenever someone comes up to me and says they know about a certain incident or they heard something, the FIRST THING I ASK THEM IS THIS: WERE YOU THERE AND DID YOU WITNESS EVERYTHING THAT TOOK PLACE. 99% of the time the answer is NO. I then tell them they don't know what happened and they have no right to even talk about the incident or even have an opinion BECAUSE THEY WERE NOT THERE. I MIGHT BE WRONG BUT THAT'S THE WAY I FEEL. I better stop with that........CookE
So the Supreme Court of Indiana can't have an opinion because each of the 9 Justices weren't present at the time of the crime?

How about juries, for that matter?

Maybe I'm misunderstanding your point.
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Old 05-16-2011, 10:06 AM
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Seems to me some of you have not read the amendment properly.
It talks about the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated".

To deny that circumstances never exist when searches and seizures are reasonable is to close your eyes to reality.

I think the court's decision is flawed, because it does not consider reasonableness. I think public policy is a bad reason, whereas "to prevent a greater evil" would be a perfectly acceptable justification. It would pass the reasonableness test.

To say that other legal remedies are available to a person whose rights have been ignored is not good enough. Clearly any person whose bad conduct precipitated the unauthorised entry should be denied the same level of compensation as an innocent victim. But that is not good enough. The innocent victims rights should be respected.
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Old 05-16-2011, 10:21 AM
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Quote:
Originally Posted by Bratastic007 View Post
A police officer who enters your home unlawfully has the same rights as anyone else who enters your house unlawfully. This is not to say that I wouldn't handle the situations differently.

The Founding Fathers saw fit to include the 4th Amendment into the Bill of Rights because they wanted it to be clear and unambiguous that citizens of the United States would have security and safety in their persons, home, and possessions. Over the years, the Supreme Court has carved out a number of exceptions to this principle. These exceptions all basically boil down to this: "Unless a citizen consents, or there is a very serious and clear exigent circumstance, no state actor may enter your home without a valid warrant issued by a judge in full review of the facts."

Does this mean that criminals sometimes get the long end of the stick over law enforcement? Yes. But the 4th Amendment protects the homes of every single US citizen, the vast majority of whom are not criminals.

Does the 2nd Amendment mean that sometimes guns end up in the wrong hands? Yes. But the 2nd Amendment protects the rights to keep and bear arms of all US citizens, the vast majority of whom are not criminals.

We need to be extremely careful about whittling away ANY of our rights. It may not always be pretty, but our rights are what make us Americans, and what make us free.
The court did not rule illegal entry legal. What the court ruled on is how a resident may deal with authorities entering their residence. Here, they ruled that a person may not physically block authorities.

If one disagrees with such a ruling and believes that physical interference should be legal, then what limitations, if any, do you think there should be? Once again, do you think it should be legal to put cop to the floor and disarm him if he began to walk through the front door after being told no?
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Old 05-16-2011, 10:30 AM
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I appreciate the desire of the LEOs on this forum to argue this particular case, but that is NOT the issue at all.

The question is that the Supreme Court of Indiana just decided that LEO have an aura of law about them which allows them to ILLEGALLY enter a private home and the citizens are to submit to them regardless. This is in direct contravention to the 4th amendment. This was put into the Constitution precisely because of that happening in Europe before the first americans came here. They were righteously upset about it and determined that this practice would be illegal here.

The problem is that the justices specifically said it didn't matter if the entry was illegal.

Their concern is, obviously, protecting law enforcement officers from being attacked inside a dwelling. Obviously, that is a good idea in theory, but you can't just toss out the Constitution when it's convenient. They ignored the LAW and decided the case on what they felt was a good outcome. Justices are not supposed to do that. When the worded law says this is very specifically wrong, you can't just write a differing opinion because you fear a potential outcome. That is the province of the Legislature to correct, not a Judge.

The Framers expected LEO, Military, etc. to not enter a private residence except by the narrowly defined legal circumstances. They didn't mean for Indiana to say any LEO can just enter any house illegally and the courts would sort it out later.
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Old 05-16-2011, 10:32 AM
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Quote:
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The husband was not inside the residence, he was outside. .
Bob, the man was inside. He went there to get away from police, which he did not want there due to his about to be charged with domestic vilence. Even the taking of a phone and throwing it is DV.

His wife told him to allow the police inside. She is the complaintant and a resident of the household. That is permissive entry in a DV situation since he could be holding her by force. Even her begging him to "stop, don't do it" would give grounds for forceful entry.

I have seen people lock themselves in a car to avoid arrest. The officer can break windows to get to the subject. I have seen them run into mama's home to get away and lock the door to keep police out.

Do not try this at home. It does not work and only complicates matters.

Had the man acted resaonably and prudent, it is possible he would have been arrested on a misdemeanor but he took it to new levels and is now trying all he can do and at great cost to get all of it to go away but it is there and his record will show it.
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Old 05-16-2011, 10:47 AM
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Well, said Oldman.
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Old 05-16-2011, 10:55 AM
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Quote:
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If one disagrees with such a ruling and believes that physical interference should be legal, then what limitations, if any, do you think there should be? Once again, do you think it should be legal to put cop to the floor and disarm him if he began to walk through the front door after being told no?
That's a difficult question, and I want to avoid any kind of blanket statements. What is or is not the right response for a homeowner will vary widely depending on the circumstances.

However, a police officer who enters into your house without a warrant and without your permission and without exigent circumstances, has no more right to be there than any other person who wanders into your home off the street. The correct response will depend on the situation. Your right to take action against the intruder will depend on the laws of your State.

Unless your state laws say differently, a man walking through your door without permission while wearing a badge has no more rights than a man walking through your door without a badge.

How you react has everything to do with the circumstances at hand. But in answer to your question, the same limitations apply.
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Old 05-16-2011, 10:56 AM
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Guys, some background for you folks who are not Hoosiers. (And no, I am not a lawyer.)

A few years ago there was a VERY high visibility case in Indianapolis that cost a police officer his life over a situation that probably would not have even resulted in an arrest, except the individual being questioned over-reacted in the worst possible way - and resorted to a shotgun. The "dispute" was over a barking dog, or something like that - something to do with a dog. (The dog had not bitten anyone.) The policeman ended up dead.

I think the SC has that tragic incident still freshly in mind - and they want to be sure to avoid more of it in the future. Indiana has very sensible gun laws (i.e., reasonable, to most of us). I believe the main point to the layman here is, don't break out your AR15 just because a police officer does something you think is improper. That is what lawyers are for. We certainly do not need any more incidents like the one I mention, both for the obvious reason, and also for those of us who would like to keep our firearms freedoms that we have here in Indiana.

In the case I mention, the killer went to prison, and later was released because the officer had acted improperly in forcing entry into the residence. Everyone was angry. One camp said he never should have served a day in jail. Another said a cop-killer was being released. You can imagine...

Whether the ruling stands on firm legal ground, I have no idea, but I am certainly in favor of trying to make people understand that using guns on the police is not an option - except under the most extraordinary circumstances. As a citizen, my understanding has always been as decribed by mm6mm6. If your life in not being endangered by the improper actions of a police officer, there is no reasonable justification for using deadly force on him. That seems pretty simple. I don't think a single thing good came out of the incident I refer to above.

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Old 05-16-2011, 10:57 AM
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Quote:
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Bob, the man was inside. He went there to get away from police, which he did not want there due to his about to be charged with domestic vilence. Even the taking of a phone and throwing it is DV.

His wife told him to allow the police inside. She is the complaintant and a resident of the household. That is permissive entry in a DV situation since he could be holding her by force. Even her begging him to "stop, don't do it" would give grounds for forceful entry.

I have seen people lock themselves in a car to avoid arrest. The officer can break windows to get to the subject. I have seen them run into mama's home to get away and lock the door to keep police out.

Do not try this at home. It does not work and only complicates matters.

Had the man acted resaonably and prudent, it is possible he would have been arrested on a misdemeanor but he took it to new levels and is now trying all he can do and at great cost to get all of it to go away but it is there and his record will show it.


Everything you said is very nice, but NOT THE ISSUE.

The ISSUE is that the Indiana Supreme Court just said that their officers can ignore the 4th Amendment of the U.S. Constitution and "ILLEGALLY" enter private residences.

Your arguments about this case do not matter. The larger issue of the Constitution is what is at stake, not this idiot guy and his actions.

As a LEO, do you think it's just OK for you to drive down the street, pick a home at random, and just barge on in? That's what they just said is ok in Indiana. They claim the remedy is that the courts will rule your home invasion illegal and any arrests you make or evidence you find will be tossed out. But, in the meantime, the citizen has to just sit there obediently and take it. That's just not right.
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Old 05-16-2011, 11:08 AM
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This is not new law. Whether the arrest or entry were legal or not is not the point. One does not have the right to resist arrest - if the arrest or entry were illegal that can all be sorted out later. That has been the law in this State, and in most others that I'm aware of, for many, many years. And, as a practical matter, you do not do yourself any favors when you resist entry or arrest by an officer who believes he is in the right. He will call as many troops as are necessary to get the job done, and you will not come out on the winning end.
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Old 05-16-2011, 11:33 AM
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As has been stated already, this ruling doesn't say its ok for cops to make illegal entry into your house. Its says the remedy is a complaint, a civil suit, or criminal charges against the police. If you physically resist, you can still be charged.

I'm not saying I agree with it, I'm just saying that's what it says.
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Old 05-16-2011, 11:43 AM
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The ISSUE is that the Indiana Supreme Court just said that their officers can ignore the 4th Amendment of the U.S. Constitution and "ILLEGALLY" enter private residences.

As a LEO, do you think it's just OK for you to drive down the street, pick a home at random, and just barge on in? That's what they just said is ok in Indiana. They claim the remedy is that the courts will rule your home invasion illegal and any arrests you make or evidence you find will be tossed out. But, in the meantime, the citizen has to just sit there obediently and take it. That's just not right.
No, they did not. What the Court ruled was that a person cannot use physical force to resist an illegal entry. They never said that LEOs are now given carte blanche to just randomly enter private residences. They also did not limit the remedy to the exclusionary rule, but included civil remedies, etc. Sit there obediently and take it? Absolutely, and all the while counting dollar signs from the civil lawsuit. What would you have the homeowner do? Grab a shotgun? A surefire way to needlessly escalate the situation into an armed confrontation that no one will win. I challenge you to find a police department that has a policy, official or otherwise, that says "it's just OK for you to drive down the street, pick a home at random, and just barge on in." That's is not the issue in front of the court, and it is disingenuous of you to suggest that the Court ruled that it was now legal.
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Old 05-16-2011, 12:02 PM
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Default Folks, this is going to...

...get interesting. A case in Detroit is close in scope and Fourth Amendment issues.

I live outside the city of Detroit. A few weeks ago, a woman was arrested for firing a gun at police officers from her home. The Detroit PD was there in support of child protective services. They wanted to remove her daughter on a charge of child neglect. The woman had refused to turn over the child, because she feared CPS would give her medications she did not want her daughter to have.

In the ensuing stand-off, the woman fired a gun at the officers, but eventually gave up and was arrested. Her attorney is arguing that the DPD illegally tried to seize the daughter for CPS, violating her Fourth Amendment rights. The judge in her arraignment has allowed the woman out of jail with a fairly low bail. Usually in these cases, bail is set at cash, and in the high $100k-$900k level.

These cases are similar in nature. CPS typically violates the fourth amendment in the name of "protecting children". This one is really going to get a lot of attention.
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Old 05-16-2011, 12:04 PM
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Sorry, I was in the middle of writing a response earlier when someone arrived. I posted what I had written without finishing it. The court said: "We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action."

The law is the law. if it is wrong, change it. I cannot see how modern thinking by legal theorists should be allowed to influence something that is in black and white. But hold on a moment. Has everyone overlooked one fact. In fact I see that the 4th Amendment as quoted in the article attached to the original posting (which I am assuming is correctly quoted until someone tells me otherwise) makes no reference to entry, forced or otherwise. It deals solely with searches and seizures. And it talks about unreasonable searches and seizures. Each case therefore needs to be judged on its merits as to whether the search or seizure was reasonable. It is not an absolute right, and never was. The people who drafted the Amendment were careful in their choice of words. If the 4th Amendment is to be extended to cover a situation not contained in its precise words, then at least the reasonableness test must also be extended. But you can’t just extend rights by implication or by similarity. So maybe the court is not throwing out 4th Amendment rights after all.

If we take the precise wording of the Amendment (and under English law the courts look only at those words without adding any embellishment, and I believe your courts do the same), maybe forced entry never was illegal under the 4th Amendment (although it may have been illegal under the common law), although certain events that subsequently take place may fall within the wording of the Amendment. It is therefore necessary to look at the ordinary law of the land outside of the constitution. Even the court did not consider this point. If the ordinary law allows LEOs to enter premises under certain circumstances (eg to prevent further crimes being committed or to prevent evidence being destroyed) then that is the law, like it or not. But it would not amount to a breach of your constitutional rights.

I have no doubt that the case will go to the US Supreme Court, who will confirm the decision but possibly for slightly different reasons. Maybe they will consider my well considered analysis, and incorporate it in their judgement.

I still think it is a dangerous precedent to effectively legitimise what would otherwise be an illegal act. I believe we should all have the right in general to refuse entry to anyone. This right should only be taken away in certain very carefully defined circumstances. I have no idea what the law is here in France, but back in the UK I certainly would have refused entry to a police officer unless he had legal authority, or at least displayed common courtesy in asking if he could come in. It would then be my choice, not his.

Where life, safety or preservation of law and order are involved I would not criticise them for acting reasonably, even if they theoretically go beyond what is authorised.
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Old 05-16-2011, 12:05 PM
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Originally Posted by bitstream View Post
Everything you said is very nice, but NOT THE ISSUE.

The ISSUE is that the Indiana Supreme Court just said that their officers can ignore the 4th Amendment of the U.S. Constitution and "ILLEGALLY" enter private residences.

Your arguments about this case do not matter. The larger issue of the Constitution is what is at stake, not this idiot guy and his actions.

As a LEO, do you think it's just OK for you to drive down the street, pick a home at random, and just barge on in? That's what they just said is ok in Indiana. They claim the remedy is that the courts will rule your home invasion illegal and any arrests you make or evidence you find will be tossed out. But, in the meantime, the citizen has to just sit there obediently and take it. That's just not right.
Sorry but we will have to agree to disagree here. The court did not rule on the legality of entry. The decision against the man still stands.

If I chase you down to a point where you enter a residence and close the door but I go in the door without a search warrant or even an arrest warrant, is that an illegal entry?

Lawyers get paid to argue whatever it takes to win a verdict for their client but does that mean the approach or direction they take makes something illegal? No it does not. We call it smokescreens. If they cloud an issue so badly that a jury may not understand the facts or the law, then their client gets off.

Courts addresses issues in the form the complaint is filed.

As I read, this was not an unlawful entry. It was done to apprendhend a fleeing subject and they were on his tail when he tried to close the door on them. That is resisting arrest, which I might add was a lawful arrest. The arrest would stand in any court. Police do not go down the street and pick houses at random to enter since that would be illegal entry but if they chase someone in a house where others or themselves may be in danger, that is legal entry.

Many fail to understand the system, be it judicial or legislative and misunderstand the wording of the law. Unless you have been in the system, it is easily done.

Personally I had a man many yrs ago that was inside a home where domestic violence was present. I witnessed him knock a 70 yr old woman down across a table. As I attempted to get him subdued, we went to the floor and he broke his wrist. His lawyer sued for a reversal of a guilty sentence on the grounds that I did not live in the house, had no business there (although I was called there by other residents, including the elderly lady) and that I used excessive force on him that caused his injury and great pain. The suit was kicked out just like the one in IN was.
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Old 05-16-2011, 12:09 PM
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That's a difficult question, and I want to avoid any kind of blanket statements. What is or is not the right response for a homeowner will vary widely depending on the circumstances.

However, a police officer who enters into your house without a warrant and without your permission and without exigent circumstances, has no more right to be there than any other person who wanders into your home off the street. The correct response will depend on the situation. Your right to take action against the intruder will depend on the laws of your State.

Unless your state laws say differently, a man walking through your door without permission while wearing a badge has no more rights than a man walking through your door without a badge.

How you react has everything to do with the circumstances at hand. But in answer to your question, the same limitations apply.
Absent reasonable fear for safety, I know of no time when it is legal to physically resist/interfere with a police officer, whether it is on the persons property or not. When is it otherwise legal to do so in your state?
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Old 05-16-2011, 12:10 PM
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I challenge you to find a police department that has a policy, official or otherwise, that says "it's just OK for you to drive down the street, pick a home at random, and just barge on in." That's is not the issue in front of the court, and it is disingenuous of you to suggest that the Court ruled that it was now legal.
You're correct to say that the Court is not granting permission for police to enter random homes without consent.

The court is stating that, if a police officer does choose to enter your home without consent (or without a warrant or exigent circumstances), your recourse is to do nothing but sit there and take it, and bide your time until you can file a complaint or lawsuit later.

This is contrary to common law and (more importantly) the intent of the Founding Fathers in drafting the 4th Amendment to our Constitution.

The legal recourse that the Court advocates is slow, expensive, and difficult. Many of the victims of the police behavior that the Court is condoning will be too poor or otherwise marginalized by society to file a civil lawsuit or to have their public complaint treated seriously.

"Wait until later and then file a lawsuit" works great if you're rich and have time, money and clout to throw at pursuing justice.

The Constitution is meant to protect the God-given rights of every US citizen from unjust and unreasonable interference by their own government. These are rights that you have because you are a human being in a free country.

You don't need permission to exercise your rights. The Government needs permission (and/or just cause) to infringe upon them. It's a simple idea, but this ruling gets it backwards.
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Old 05-16-2011, 12:18 PM
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The court is stating that, if a police officer does choose to enter your home without consent (or without a warrant or exigent circumstances), your recourse is to do nothing but sit there and take it, and bide your time until you can file a complaint or lawsuit later.
Aside from the legal issues, which really are well-settled, I just don't understand what you would propose to do here. Resist with gunfire? Pepper spray? Fists and knives? Stand in the doorway until they forcibly move you? What is it, specifically, that you have in mind? Because you're sure not going to come out ahead under any of the above alternatives.
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Old 05-16-2011, 12:20 PM
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Aside from the legal issues, which really are well-settled, I just don't understand what you would propose to do here. Resist with gunfire? Pepper spray? Fists and knives? Stand in the doorway until they forcibly move you? What is it, specifically, that you have in mind? .
I've asked several times...
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Old 05-16-2011, 12:20 PM
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Absent reasonable fear for safety, I know of no time when it is legal to physically resist/interfere with a police officer, whether it is on the persons property or not. When is it otherwise legal to do so in your state?
You are correct that absent reasonable fear for safety, you cannot use physical force against another individual. The amount of force used in defense must be in proportion to the risk or force against you. This is also subject to "duty to retreat" rules in certain situations.

I know of nothing which says that a different standard applies when the aggressor is a police officer acting unlawfully.

An unlawful intruder into my home does not have more rights by virtue of being a police officer. If anything, he has fewer rights, because the 4th Amendment applies.

That being said, my reaction to finding a police officer in my home without permission would be vastly different to my reaction to finding a junkie or gang member in my home without permission. That's acting with reasonableness. But the police officer has no more rights to be there than the junkie, just by virtue of his badge.
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Old 05-16-2011, 12:25 PM
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I've asked several times...
I'm not trying to evade your question. What is it specifically that you want me to answer?

What would I have done if I were the ex-husband in this case? If I were the ex-husband, I wouldn't have put myself in that position in the first place.
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Old 05-16-2011, 12:25 PM
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Wells,

Before this'n gets locked down, I just wanta say I'm with the Cops on this one...


Su Amigo,
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We'll do this like Gentlemen or we'll be stoppin by the E.R. on the way to County.
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Old 05-16-2011, 12:28 PM
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That being said, my reaction to finding a police officer in my home without permission would be vastly different to my reaction to finding a junkie or gang member in my home without permission. That's acting with reasonableness. But the police officer has no more rights to be there than the junkie, just by virtue of his badge.
I'm not arguing about whether or not the officer has a right to be there. My question is what do you intend to DO? And I still haven't heard an answer. Either you resist or you don't. If you do, you go to jail or the grave. If you don't, you sue or complain later just like everyone here has already said. Which is it?
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Old 05-16-2011, 12:33 PM
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Sorry but we will have to agree to disagree here. The court did not rule on the legality of entry. The decision against the man still stands.

If I chase you down to a point where you enter a residence and close the door but I go in the door without a search warrant or even an arrest warrant, is that an illegal entry?

Lawyers get paid to argue whatever it takes to win a verdict for their client but does that mean the approach or direction they take makes something illegal? No it does not. We call it smokescreens. If they cloud an issue so badly that a jury may not understand the facts or the law, then their client gets off.

Courts addresses issues in the form the complaint is filed.

As I read, this was not an unlawful entry. It was done to apprendhend a fleeing subject and they were on his tail when he tried to close the door on them. That is resisting arrest, which I might add was a lawful arrest. The arrest would stand in any court. Police do not go down the street and pick houses at random to enter since that would be illegal entry but if they chase someone in a house where others or themselves may be in danger, that is legal entry.

Many fail to understand the system, be it judicial or legislative and misunderstand the wording of the law. Unless you have been in the system, it is easily done.

Personally I had a man many yrs ago that was inside a home where domestic violence was present. I witnessed him knock a 70 yr old woman down across a table. As I attempted to get him subdued, we went to the floor and he broke his wrist. His lawyer sued for a reversal of a guilty sentence on the grounds that I did not live in the house, had no business there (although I was called there by other residents, including the elderly lady) and that I used excessive force on him that caused his injury and great pain. The suit was kicked out just like the one in IN was.
Ok, I went to lunch and thought about it and have this.

I believe that your arguments SHOULD be what is important, i.e. was the entry legal or not. By your read, the action was legal, thus the resistance was not legal. I do not disagree with you in this.

However, what the court said is that the legality of the entry was not relevant. They claim that the Officer basically enjoys an immutable umbrella of protection at all times, even if he is acting illegally. Thus, an Officer could potentially just pick a house at random and walk right in. (I'm not suggesting this is likely, just possible because of their ruling).

I suggest that the correct ruling is thus: The context of the entry IS important. If the entry is legal, then I concur that the occupant has no right to resist and should submit to authority. However, if the entry is judged illegal, then the Officer should immediately loose all protection under the law and everythign that follows should be judged as if the Officer were merely a private citizen. In this case, if the entry were found to be illegal, then they should follow the laws of the state of Indiana for tresspassing and whatever the laws there allow for use of force, etc. If your neighbor Fred just walks in your house, what does Indiana allow for you to do? That is how the Officer should be treated from the moment he illegally enters a domicile. It is his responsibility to know the law and know if he has an articulated legal reason to enter. Ignorance of the law isn't an excuse; if he has no legal right to enter, he's on his own and should have no extra protection that the mythical neighbor Fred wouldn't have. If Indiana allows you to shove your neighbor Fred tresspassing in your house, then that's ok in this case. If Fred tases you, then he should be arrested for assault presumably.

So, in summation, your articulated rationale SHOULD be important and the question of wheather the entry was legal SHOULD matter. If you are right (and you probably are), then this guy should have been arrested as you have advocated. In this case, the court said it didn't matter, the cops could do as they pleased, which I respectfully disagree with.

BTW, I most definitely do NOT advocate resisting police. I do, however, advocate that police not illegally enter a residence.
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Old 05-16-2011, 12:40 PM
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I'm not arguing about whether or not the officer has a right to be there. My question is what do you intend to DO? And I still haven't heard an answer. Either you resist or you don't. If you do, you go to jail or the grave. If you don't, you sue or complain later just like everyone here has already said. Which is it?
As I've stated many times, it depends on the circumstances.

If I come downstairs in the middle of the night, and find a police officer in my house, I'm going to have a lot of questions for him. Just because he is there unlawfully doesn't mean my first assumption is that he's there to do harm to me and my family. Quite the opposite, if it's a police officer.

If I come downstairs to find a junkie in my living room, I'll have fewer questions and more commands.

But there's no law saying criminals can't dress like the police. (I guess there is that law, technically, but criminals just don't follow it ). What I'm saying is that, if you are in my home unlawfully, you will be treated with suspicion and as a possible threat until you can convince me otherwise.

Everything else depends on the circumstances, and I'm not interested in playing the hypothetical game all afternoon.
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Old 05-16-2011, 01:21 PM
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Bob, the man was inside. He went there to get away from police, which he did not want there due to his about to be charged with domestic vilence. Even the taking of a phone and throwing it is DV.

His wife told him to allow the police inside. She is the complaintant and a resident of the household. That is permissive entry in a DV situation since he could be holding her by force. Even her begging him to "stop, don't do it" would give grounds for forceful entry.

I have seen people lock themselves in a car to avoid arrest. The officer can break windows to get to the subject. I have seen them run into mama's home to get away and lock the door to keep police out.

Do not try this at home. It does not work and only complicates matters.

Had the man acted resaonably and prudent, it is possible he would have been arrested on a misdemeanor but he took it to new levels and is now trying all he can do and at great cost to get all of it to go away but it is there and his record will show it.
“Officer Jason Henry arrived on the scene and observed that Barnes was ―very agitated and was yelling.‖ Barnes ―continued to yell, loudly‖ and did not lower his voice until Reed warned that he would be arrested for disorderly conduct. Barnes retorted, ―if you lock me up for Disorderly Conduct, you‘re going to be sitting right next to me in a jail cell.‖ Mary came onto the parking lot, threw a black duffle bag in Barnes‘s direction, told him to take the rest of his stuff, and returned to the apartment. Reed and Henry followed Barnes back to the apartment. Mary entered the apartment, followed by Barnes, who then turned around and blocked the doorway. Barnes told the officers that they could not enter the apartment and denied Reed‘s requests to enter and investigate. Mary did not explicitly invite the officers in, but she told Barnes several times, ―don‘t do this‖ and ―just let them in.‖ Reed attempted to enter the apartment, and Barnes shoved him against the wall. A struggle ensued, and the officers used a choke hold and a taser to subdue and arrest Barnes. Barnes suffered an adverse reaction to the taser and was taken to the hospital.”

The Fourth Amendment –
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


I'm still trying to bow out on this but I feel the need to take a direct quote for the reason behind what I said. But it still remains…

“ We hold that there is no right to reasonably resist unlawful entry by police officers.”
  #42  
Old 05-16-2011, 02:08 PM
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As I've stated many times, it depends on the circumstances.

If I come downstairs in the middle of the night, and find a police officer in my house, I'm going to have a lot of questions for him. Just because he is there unlawfully doesn't mean my first assumption is that he's there to do harm to me and my family. Quite the opposite, if it's a police officer.

If I come downstairs to find a junkie in my living room, I'll have fewer questions and more commands.

But there's no law saying criminals can't dress like the police. (I guess there is that law, technically, but criminals just don't follow it ). What I'm saying is that, if you are in my home unlawfully, you will be treated with suspicion and as a possible threat until you can convince me otherwise.

Everything else depends on the circumstances, and I'm not interested in playing the hypothetical game all afternoon.
I'm not sure such hypotheticals of waking up with junkies or police officers roaming around inside the home are necessary here.

The ruling as I read it seemed quite specific. The ruling was about denying entry of police officers into the home. "We hold that there is no right to reasonably resist unlawful entry by police officers." In this specific instance, it was in reference to physically blocking the entrance to the residence.

Perhaps an officer can jump in here to correct or verify, but I don't think an officer is under any legal requirement to prove to the citizen's satisfaction that he/she has legal grounds to enter the residence at the time of entry. Correct or not?
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Old 05-16-2011, 02:36 PM
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Originally Posted by ChattanoogaPhil View Post

Perhaps an officer can jump in here to correct or verify, but I don't think an officer is under any legal requirement to prove to the citizen's satisfaction that he/she has legal grounds to enter the residence at the time of entry. Correct or not?
I'm not a police officer, but I am an attorney. So I'll take a crack at answering your question.

No, the police do not have to articulate to the satisfaction of the guy behind his door why they want the door opened. However, if they have probable cause as to why they need to be in your home and can't wait for a warrant, they should be able to state it. Or they should ask for consent to come in.

It's the same thing for detaining you temporarily in public. If a police officer comes up and says, "Hey stop! Police!" You have a right to ask what they want. The policeman has a right to stop you and detain you temporarily if they can articulate some valid reason to stop you. "We got a report of a mugger in this area who matches your description." OK, fair enough. The policeman can stop you for long enough to determine if you're the mugger or not. He can also treat you as if you may be armed, so long as he does so reasonably. This is called a Terry stop, after the US Supreme Court case of the same name which dealt with this issue for the first time.

The policeman at your door should be able to articulate why he needs you to open your door. This doesn't mean that they have to give you a 20 minute explanation. And if they don't have a reason, and are just asking for consent to come in, you can tell them to buzz off. Are there times when there just isn't time to explain, and they have to kick your door down without a word or warning? Sure, but those instances are very few and far between.

The 4th Amendment comes into play when you've told them to buzz off, but they come in anyway. Or they come without a warrant when you aren't at home.

That is what was happening in the case here. The police demanded entrance, the ex-husband said "no." The police came in anyhow, and the man tried (unwisely) to prevent them.

So while the police officer was not under any obligation to have a sit-down with the ex-husband and explain the ins and outs of why they wanted to be in his house, they at least should have had a valid reason to be in there against his will. What's valid? A cop needs to rely on his training in the moment in order to determine that. But ultimately it isn't the cop's opinion that matters--it's a judge's opinion after the fact as to whether the cop acted reasonably.

Did the cops in this case act reasonably or inform the man of their rationale for needing to be in his home? I have no idea, but there seems to be at least a difference of informed opinion on that matter.

As others have pointed out, what they cops did and what the guy did and who acted wrongly or rightly is not the issue. What is the issue is what right if any does a citizen have to resist entry by a police officer in the event that the entry is unlawful. And my opinion is that this is an extreme right, but one that should not be taken away.

Should a citizen have the right to REASONABLY resist an UNLAWFUL entry into their homes by police? The Indiana Supreme Court said "no."

Last edited by Bratastic007; 05-16-2011 at 02:42 PM.
  #44  
Old 05-16-2011, 04:01 PM
bk43 bk43 is offline
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Quote:
Originally Posted by Bratastic007 View Post
As others have pointed out, what they cops did and what the guy did and who acted wrongly or rightly is not the issue. What is the issue is what right if any does a citizen have to resist entry by a police officer in the event that the entry is unlawful. And my opinion is that this is an extreme right, but one that should not be taken away.
To even suggest that citizens have the right to decide, on the fly, when an action by the police is legal or not is absolutely nuts. To say the concept is protected by the Constitution is beyond nuts, say as in get the straight jacket on him ASAP. A court decides, after the fact, if an action is legal or not. What any individual decides while the action is going down means diddly squat.

You can't possibly be an attorney, sorry.

Bob
  #45  
Old 05-16-2011, 04:09 PM
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Ok, food for thought here.

If a police officer stops you, for wahtever reason, and finds you armed. Does he have the RIGHT to disarm you during questioning?

Of course, do so would be a violation of the Second Amendment we are all so vocal about.

Yet for the safety of the officer and others, he has the right to do so and as the Mayor of Shreveport, LA said during a media interview in not so many words, "when an officer stops you, you lose your rights temporarily and have no rights." A person can google that and read the entire discourse.

I do not want to confront an armed citizen that has been stopped for any reason. Tempers flare, movements can be misinterpreted and a lot of other things. Have I gone against the 2nd by disarming the person? In a broad view, yes. Yet I have not taken away his right to own and bear but simply for the good at the time, his rights have been suspended.

The issue in this thread is no different. The man committed a crime according to police and the court. His lawyer attempted to circumvent the law and the arrest by blowing smoke. The officers were on the scene and the man attempted to resist and hide by use of his domicle, which is where the domestic issue began. As far as I know, IN law does not require a signed complaint in domestic issues and under the Must Ride rule, the police were justified in arresting the man and removing him from the scene.

No where in the ruling did the court say that police can enter buildings at random without cause. I am 100% certain that if that were to happen, the court would rule against them.
  #46  
Old 05-16-2011, 04:10 PM
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Quote:
Originally Posted by bk43 View Post
To even suggest that citizens have the right to decide, on the fly, when an action by the police is legal or not is absolutely nuts. To say the concept is protected by the Constitution is beyond nuts, say as in get the straight jacket on him ASAP. A court decides, after the fact, if an action is legal or not. What any individual decides while the action is going down means diddly squat.

You can't possibly be an attorney, sorry.

Bob
Your response is laughable.

The only accurate part was your statement that "a court decides, after the fact, if an action is legal or not."

What you seem not to grasp is that this concept applies to citizens and police alike.

A police officer uses his training and experience to determine the best course of action in any given situation. It is up to a court to ultimately decide if that action was lawful or not.
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Old 05-16-2011, 04:22 PM
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Gentlemen,

We can discuss and debate here, even in a spirited manner, but don't make it personal. Let's keep our critiques focused on the subject.
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Old 05-16-2011, 04:29 PM
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People tend to forget that officers do not always have a District Attorney on the scene with them. Situation ethics at the time come into play and instinct takes over. Unfortunately the decisions officers make are not always the best.
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Old 05-16-2011, 04:44 PM
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Originally Posted by oldman45 View Post
People tend to forget that officers do not always have a District Attorney on the scene with them. Situation ethics at the time come into play and instinct takes over. Unfortunately the decisions officers make are not always the best.
Well said. Police make mistakes, so do citizens. Rarely if ever do police or citizens have the luxury of a legal adviser on the scene. And even if they did, the odds are good that even the lawyers would disagree about what's right in any given situation.

With the advantage of hindsight and time for consideration, even the Indiana Supreme Court can't reach a unanimous conclusion about what was right in this case.
  #50  
Old 05-16-2011, 05:16 PM
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Quote:
Originally Posted by Bratastic007 View Post
I'm not a police officer, but I am an attorney. So I'll take a crack at answering your question.

No, the police do not have to articulate to the satisfaction of the guy behind his door why they want the door opened. However, if they have probable cause as to why they need to be in your home and can't wait for a warrant, they should be able to state it. Or they should ask for consent to come in.
If probable cause for entry has been established, there is no need for consent.

Quote:
Originally Posted by Bratastic007 View Post
The policeman has a right to stop you and detain you temporarily if they can articulate some valid reason to stop you.
No, he does not. He has the legal authority to conduct an investigative detention. No such "right" exists.

Quote:
Originally Posted by Bratastic007 View Post
He can also treat you as if you may be armed, so long as he does so reasonably. This is called a Terry stop, after the US Supreme Court case of the same name which dealt with this issue for the first time.
A Terry Stop is not grounds to treat an individual as if he is armed. The SCOTUS decision in Terry v. Ohio stated that "police may briefly detain a person whom they reasonably suspect is involved in criminal activity; the Court also held that police may do a limited search of the suspect’s outer garments for weapons if they have a reasonable and articulable suspicion that the person detained may be “armed and dangerous”." It does NOT allow police officers to "treat you as if you may be armed" in the absence of reasonable suspicion.

Quote:
Originally Posted by Bratastic007 View Post
The policeman at your door should be able to articulate why he needs you to open your door. This doesn't mean that they have to give you a 20 minute explanation. And if they don't have a reason, and are just asking for consent to come in, you can tell them to buzz off. Are there times when there just isn't time to explain, and they have to kick your door down without a word or warning? Sure, but those instances are very few and far between.

The 4th Amendment comes into play when you've told them to buzz off, but they come in anyway. Or they come without a warrant when you aren't at home.

That is what was happening in the case here. The police demanded entrance, the ex-husband said "no." The police came in anyhow, and the man tried (unwisely) to prevent them.
That is not what occurred here. The ex-husband attempted to deny entry at the same time the other resident was giving de facto permission for entry. The Court in this case did not decide if the entry was legal or illegal, but simply ruled on the defendant's assertion that he should not be charged with resisting arrest since the entry was illegal. The Court stated that even if the entry was illegal, the defendant did not have legal grounds for physically resisting entry.

Quote:
Originally Posted by Bratastic007 View Post
So while the police officer was not under any obligation to have a sit-down with the ex-husband and explain the ins and outs of why they wanted to be in his house, they at least should have had a valid reason to be in there against his will. What's valid?
The 911 call from the resident is the valid reason for the officers to be there. the subsequent behavior on the defendant's part further legitimizes both their continued presence and actions taken to prevent possible violence from occurring.

Quote:
Originally Posted by Bratastic007 View Post
As others have pointed out, what they cops did and what the guy did and who acted wrongly or rightly is not the issue. What is the issue is what right if any does a citizen have to resist entry by a police officer in the event that the entry is unlawful. And my opinion is that this is an extreme right, but one that should not be taken away.
No, the issue in this case was whether or not the defendant had a legal right to physically resist the officers' entry into the residence based on the circumstances, and if he did, if that right would negate the charge of resisting arrest.

Quote:
Originally Posted by Bratastic007 View Post
Should a citizen have the right to REASONABLY resist an UNLAWFUL entry into their homes by police? The Indiana Supreme Court said "no."
Again, the ruling was that in light of other manners of redress under the system, there is no legal right to use physical force to deny an unlawful entry.

You have stated that you are an attorney, and I'll take your word for it that you are. As one who has taught Constitutional law as it applies to Search and Seizure, your interpretation of the SCOTUS ruling in Terry v. Ohio is a bit off track. You may have been attempting to simplify it, but what you stated is not actually in line with the actual decision.

Last edited by CelticSire; 05-16-2011 at 05:18 PM.
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