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Indiana supends the 4th admendment

 
 
raprap
 
Reply Sat 14 May, 2011 12:23 pm
http://www.nwitimes.com/news/local/govt-and-politics/article_ec169697-a19e-525f-a532-81b3df229697.html

Resistance is futile--

Is this is the consequence of an activist conservative court? If so, the is a liberal court that preserves constitutional rights wrong?

And will this kick Mitch Daniel's presidential aspirations in the butt?

Rap
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Type: Question • Score: 10 • Views: 1,414 • Replies: 17
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rosborne979
 
  1  
Reply Sat 14 May, 2011 12:52 pm
@raprap,
If an office is allowed to enter a home without cause (illegally), how long is he allowed to stay? Can they just put their feet up and wait for your civil suit to force them out?
0 Replies
 
Setanta
 
  1  
Reply Sat 14 May, 2011 01:57 pm
If it goes that far, you do have to wonder if the Roberts Court will uphold this scandalous ruling.
roger
 
  1  
Reply Sat 14 May, 2011 01:59 pm
@raprap,
Appropriate title. I don't think you are going to find many conservatives agreeing with the ruling.
0 Replies
 
Ticomaya
 
  1  
Reply Sat 14 May, 2011 02:13 pm
THE OPINION

"Now this Court is faced for the first time with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers. We conclude that public policy disfavors any such right. Accordingly, the trial court‘s refusal to give Barnes‘s tendered instruction was not error."

"Further, we note that a warrant is not necessary for every entry into a home. For example, officers may enter the home if they are in ―hot pursuit‖ of the arrestee or if exigent circumstances justified the entry. ... Even with a warrant, officers may have acted in good faith in entering a home, only to find later that their entry was in error. ... In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance."

"Because we decline to recognize the right to reasonably resist an unlawful police entry, we need not decide the legality of the officers‘ entry into Barnes‘s apartment. We note, however, that the officers were investigating a ―domestic violence in progress‖ in response to a 911 call. A 911 call generally details emergency or exigent circumstances requiring swift police action. In these cases, the officers are responding to rapidly changing or escalating events, and their initial response is often based on limited information. The officers cannot properly assess the complaint and the dangers to those threatened without some limited access to the involved parties. It is unrealistic to expect officers to wait for threats to escalate and for violence to become imminent before intervening. Here, the officers acted reasonably under the totality of the circumstances."

"In sum, we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law."

DISSENT:

"But the common law rule supporting a citizen‘s right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the United States Constitution. Indeed, ―the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.‖ Payton v. New York, 445 U.S. 573, 585 (1980). In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home."
Thomas
 
  2  
Reply Mon 16 May, 2011 08:38 am
@Setanta,
Setanta wrote:
If it goes that far, you do have to wonder if the Roberts Court will uphold this scandalous ruling.

Indeed. And what's more, if the Roberts Court really believes that the Second-Amendment protects a citizen's right to resist tyrannical government, it will up the ante and encourage that the homeowner shoot the pig. There's no point in safeguarding a right to armed resistance if you can't even wrestle with a cop gone bad.

Out of excessive caution, I won't be holding my breath though.
Thomas
 
  1  
Reply Mon 16 May, 2011 08:53 am
@Thomas,
To clarify: In this case the police officer in question wasn't "a pig". He thought, wrongly, that there was imminent domestic violence and entered the home to prevent it.
0 Replies
 
raprap
 
  2  
Reply Mon 16 May, 2011 08:54 am
I don't know who should be more apprehensive of this decision the homeowner or the police. The homeowner, as it places the 4th amendment in court, and courts are a additional expense restricting justice to those that can afford representation. The police as the homeowner may consider that a bullet is cheaper than a lawyer.

Partially I consider this decision a consequence of the War on Drugs---and the escalation of law enforcement from 'Peace Officers' to para-military 'SWAT teams'.

Rap
0 Replies
 
Setanta
 
  1  
Reply Mon 16 May, 2011 10:48 am
@Thomas,
The problem i see is not who shoots whom and with what justification, but that this ruling in Indiana simply and cavalierly voids the fourth amendment rights of the people. So, i would be interested to see how the Roberts' court deals with it.

Gunfire i can live with, as long as it's not at my house.
Thomas
 
  1  
Reply Mon 16 May, 2011 11:00 am
@Setanta,
Setanta wrote:
So, i would be interested to see how the Roberts' court deals with it.

I'm pretty sure the Roberts court would sack it. Scalia and Thomas are pretty fervent about protecting the common-law roots of America's Bill of Rights. Kagan, Sotomayor, Breyer, and Ginsburg won't stand for the dismantling of civil rights. Roberts, Alito, and Kennedy I'm not sure of, but they'd be in the minority against the other six.
Setanta
 
  1  
Reply Mon 16 May, 2011 11:02 am
@Thomas,
I would hope so. What bothers me is that this is the kind of court which might try to find some torturous path to come down on the side of police powers. I respect your analysis, but i can't myself be so optomistic.
0 Replies
 
Finn dAbuzz
 
  1  
Reply Tue 17 May, 2011 08:07 am
Once again we are presented with an issue that will demonstrate the inconsistency of partisan based thinking.

If a citizen's right to resist illegal police entry must be preserved then, for consistency's sake if nothing else, a citizen's right to bear arms in order to be in a position to resist a tyrannical government must be preserved as well.

Clearly the Indiana Supreme Court decision does not render all police entry automatically legal, but addresses the facts that in more cases than not the right to resist illegal police entry will be illegitmately invoked and that severe violence will result.

This seems awfully consistent with the argument that the right of citizens to bear arms should be restricted because intent is questionable, resistence against an illegimate government backed by the US military is futile, and severe violence often results.

It can easily be argued that the Indiana Supreme Court is merely recognizing how our society has changed over time, and that the practical considerations of hundreds of years ago are now impractical. Isn't the Constitution a living document that must adapt to a changing American society?

Apparently we should trust our government, but not our police...or vice versa.

Whether or not the Indiana Supreme Court can be accurately described as either conservative or liberal, this decision is a case of judicial activisim. Obviously it often depends or what sort of activism you're OK with or what sort membership in your ideological tribe requires you to support.

Unless Mitch Daniels apponted all three of the deciding judges, or the MSM are able to use this story to create the narrative that Indianans are right-wing nuts, it will have no impact on his chance to be our next president.


plainoldme
 
  1  
Reply Tue 17 May, 2011 08:21 am
This is a new book that might interest some of you:

Justices and Journalists: The U.S. Supreme Court and the Media
By Richard Davis
(Cambridge University Press, 241 pp., $28.99)
0 Replies
 
Irishk
 
  1  
Reply Tue 17 May, 2011 08:28 am
@Finn dAbuzz,
I can't for the life of me figure out how they arrived at their conclusions.

They believe:
Quote:
a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,”


So, aren't they basically claiming that the Constitution is unconstitutional?
plainoldme
 
  1  
Reply Tue 17 May, 2011 08:35 am
@Irishk,
They're saying something conservatives don't agree with: that the Constitution and its amendments are flexible and interruptible (gosh! I thought spell check would have flagged that last one!).
0 Replies
 
Setanta
 
  1  
Reply Tue 17 May, 2011 08:37 am
@Irishk,
They are claiming that prohibiting entry to the police is not consistent with how the amendment has been interpreted in modern times. I disagree, which doesn't mean a goddamned thing in Indiana.
Irishk
 
  1  
Reply Tue 17 May, 2011 08:55 am
@Setanta,
It sounds, to me, like they're trying to protect their police force, too. At the expense of the Constitution, though.

If I lived there, I'd be tempted to just turn over my house-key (we just installed a new leaded-glass front door).

(OK, that sounds alarmist)
0 Replies
 
roger
 
  2  
Reply Tue 17 May, 2011 01:44 pm
@Ticomaya,
Ticomaya wrote:

THE OPINION

"Now this Court is faced for the first time with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers.


Now, this wording is pretty clear that such entry is unlawful. So, the courts are advocating unlawful activities. How can this be?
0 Replies
 
 

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