ISC: no right to resit unlawful police entry into your home

[Deanimator]

Please reference some cases where a police officer was not held accountable because of lack of knowledge of the law.

If that is the case where you are from, and you don't like it, then move. That is not the case where I am from. Ignorance is not a defense. Even for cops. If carrying concealed into a liquor serving establishment in your state is a crime, and you choose to do so anyways, then yes, your can be arrested. You seem to know that.

I can't think of an instance where police violated someone's rights by misstating, misapplying, or MAKING UP the law, where their defenders DIDN'T claim that there are "too many laws for the police to know".

If a cop is too lazy or not smart enough to KNOW the law, then he can't ENFORCE the law. He's merely enforcing his own baseless whim. If you use armed force to enforce baseless whim against me, I will do everything humanly possible within the law to make you regret it for the rest of your life.

Let me restate: To hold the average citizen to a HIGHER standard of knowledge of the law than a supposedly "trained" LEO is utterly despicable and demonstrates profound contempt not just for the people, but for the law itself.

 

[Wheeler44]

avs11504......I believe that what is being said in response to an earlier post of yours is this... In your earlier post, you stated that cops often must "look up" the statute in order to properly enforce it. You further stated that (and I paraphrase) "these are trained professionals" with much more experience (I suppose you mean at looking up statutes) than the layman that posts here and in other sub-fora on THR. In essence what you have stated is that there are too many laws for any individual to know. I am sure that you are aware that ignorance of the law is no excuse for breaking the law. So it is the responsibility of the layman to know the laws so as not to violate said 3" thick tome of laws, codes and statutes.

At the same time legislature adds one more doozy of a law for the layman in Indiana to memorize.....The cops and by extension anyone claiming to be a cop, can go wherever, whenever, for whatever reason. The recourse to such action is, (if you survive the event) sue the public in a court of law, if you have the time and resource to do so. If the plaintiff wins the case, the public pays for whatever inconvenience the courts decide.

I think that I like the Fourth amendment the way that the founders crafted it better.

W44

 

[avs11054]

Deanimator,

Give reference to an instance "where police violated someone's rights by misstating, misapplying, or MAKING UP the law, where their defenders [DID] claim that there are 'too many laws for the police to know.'" From your posts, it seems to be implying that there are many of them. Then, we'll see if we can find what the ultimate outcome in the situation was.

When has a cop used a "baseless whim" against you, and how do you know it was a "baseless whim?" Again, this is what the Indiana Supreme Court is trying to prevent. What you consider a "baseless whim" could be a perfectly legitimate search or arrest.

Let me restate: Just because you do not think the search or arrest is lawful, does not mean it is not lawful.

 

[TCB in TN]

My point is proven.

I would encourage you to start some research on search and seizure. While I do not usually advocate wikipedia, start here (http://en.wikipedia.org/wiki/Search_warrant#Exceptions) for a very bried explanation of a few different exceptions to the search warrant requirement. You can then use google if you would like further information, as there is plenty of it on the internet.

Which point? That there are more useless/dangerous laws on the books than you can shake a stick at?

Don't take my disdain for the current "legal system" for a lack of understand of how it works. My biggest concern is the seemingly wide spread lack of concern for so many obvious problems that exist. Problems that do not just exist, but are celebrated by far to many that profess to serve and protect.

 

[avs11054]

Wheeler44,

Again, where in the Indiana ruling does it state that the cops can go anywhere for any reason? I must have missed that part.

I also must have missed the part in the fourth ammendment where it gives people the right to use physical/deadly force to resist arrests/searches.

 

[avs11054]

The point that people do not necissarily know that a search is illegal. As you stated in your post, unless there is a life or death situation, the police have to get a warrant. This is not actually the case. So if the police have a lawful reason to be in your house, but it is not a life or death situation (which you think is needed for the police to be in your house without a warrant) you may not know their lawful reason, and thus, would resist the entry. This puts everyone's safety at risk, which is what is trying to be prevented in the Indiana ruling.

 

[Deanimator]

Give reference to an instance "where police violated someone's rights by misstating, misapplying, or MAKING UP the law, where their defenders [DID] claim that there are 'too many laws for the police to know.'" From your posts, it seems to be implying that there are many of them. Then, we'll see if we can find what the ultimate outcome in the situation was.

When has a cop used a "baseless whim" against you, and how do you know it was a "baseless whim?" Again, this is what the Indiana Supreme Court is trying to prevent. What you consider a "baseless whim" could be a perfectly legitimate search or arrest.

Let me restate: Just because you do not think the search or arrest is lawful, does not mean it is not lawful.

It's been said HERE, and not just once or twice. Search is your friend.

Open carry is completely legal in Ohio. The spurious claims by ignorant and or malicious LEOs that it's "inducing panic" are tiresome in their monotonous repetition. In NO way does lawful open carry come within 1,000,000 miles of the elements of the offense. LEOs simply don't seem to care. All too often, they treat the law as whatever they want it to be, not what it SAYS. And that leaves off purely malicious arrests and prosecutions, such as when Beachwood, OH police ORDERED A PERSON TO REMAIN SILENT... then charged him with "failure to notify"... AFTER he'd managed to notify them 51 seconds into their stop, DESPITE their order to remain silent. He was of course acquitted. I hope he's suing everyone involved and reams them with punitive damages.

Inane misstatement of the law by LEOs is SO frequent, here and in other states that I'm more surprised when an LEO knows the law then when he doesn't. But then if I was allowed to make it up as I go along, and had free legal representation when I violated the law, I might have a similar cavalier attitude toward knowing and obeying the law... never mind protecting people's civil and constitutional rights.

 

[nigmalg]

I also must have missed the part in the fourth ammendment where it gives people the right to use physical/deadly force to resist arrests/searches.

It's about options. In the event you KNOW the entry/search is unlawful, and you have a reason to suggest that it's a threat to your life, resisting should be legal. The expectation in this country is that we may let a few of the less dangerous "bad guys" get away to protect the thousands of innocent from mistaken or burdensome prosecution.

Give reference to an instance "where police violated someone's rights by misstating, misapplying, or MAKING UP the law, where their defenders [DID] claim that there are 'too many laws for the police to know.'" From your posts, it seems to be implying that there are many of them. Then, we'll see if we can find what the ultimate outcome in the situation was.

There's enough "qualified immunity" jurisprudence to make a citation here unnecessary. It's one of the most important prongs to a qualified immunity defense when it comes to civil suits against departments.

Another poster here put it quite well. The court should have found this entry lawful under some sort of community caretaker exception. They painted with much too broad of a brush, and now many people potentially suffer.

 

[benEzra]

The thing is, this could have been argued on exigent circumstances, e.g. the officers did have the right to enter the home under those particular circumstances, hence the entry was not illegal.

This isn't what the ISC said. What they said went way, way, way beyond the facts of this particular case, throwing eight hundred years of common law and legal precedent out the window to say that there is no right whatsoever to resist an illegal entry by agents of the state under any circumstances.

There is a big thread over at Volokh on this, and the general consensus at first read seems to be that this is an asinine ruling that is only tenuously related to the facts of the case itself.

It doesn't help that the same court just ruled that Indiana police no longer need to seek no-knock warrants in order to conduct no-knock raids.

Another poster here put it quite well. The court should have found this entry lawful under some sort of community caretaker exception. They painted with much too broad of a brush, and now many people potentially suffer.

They could have also gone with the exigent-circumstances exception under Indiana law, but they didn't bother. To have done so would have prevented them from declaring existing 4th Amendment jurisprudence obsolete.

 

[Shadow 7D]

My understanding was, that when a LEO uses a NO KNOCK WARRANT that they do so AT THEIR OWN RISK, in that, until, and unless it can be established that the person who resisted the warrant action KNEW at the time of resisting that they were resisting a LEGAL ACTION by POLICE, they can be assumed to be acting in their own self defense, and that is why it requires a DA to take it to a judge to sign off on. I believe there have been a few cases where an individual was convicted on what the warrant covered, but, after a long hospital stay, was found not guilty of resisting the police NO KNOCK WARRANT

I actually have more issue with this, actually both, as it allows NO KNOCK at the officers discretion, AND removes the ability to defend yourself.

In this case I fault the cops,
ALL THEY HAD TO DO WAS TALK TO THE WOMAN, if they had asked, and she had given them permission, this would have been a LEGAL entrance.

Sadly, after a few cops and dead, and so are a few innocents, I'm sure the state and local governments will have fun paying out and getting slammed in the Federal courts on civil rights cases. Just getting the standing to challenge the laws will be painful.

 

[TCB in TN]

The point that people do not necissarily know that a search is illegal. As you stated in your post, unless there is a life or death situation, the police have to get a warrant. This is not actually the case. So if the police have a lawful reason to be in your house, but it is not a life or death situation (which you think is needed for the police to be in your house without a warrant) you may not know their lawful reason, and thus, would resist the entry. This puts everyone's safety at risk, which is what is trying to be prevented in the Indiana ruling.

That was not what I stated in my post. Reading comprehension skills are important to the conversation here. I said,

Unless there is a life/death situation then taking the time to actually get a warrant to get into someone's home doesn't seem to be to much to ask or expect.

I understand that there are several exceptions, but again unless it is a life/death situation there should not be. As has been mentioned by many others above while there are some remedies available to average joe citizen, it is a stacked deck, and far to often the remedy offered is no real remedy at all. I have stated it before but will repeat it again, I have many friends and family in LE and have a great admiration for those who do it right. But for those who push the envelope (or terms used to excuse like behavior), there should be more harsh, and effective penalties available.

 

[Deanimator]

This isn't what the ISC said. What they said went way, way, way beyond the facts of this particular case, throwing eight hundred years of common law and legal precedent out the window to say that there is no right whatsoever to resist an illegal entry by agents of the state under any circumstances.

Indeed, according to this ruling, were police wearing Klan regalia to force their way into the home of a Black person, shouting racial slurs and brandishing a noose, the victim would have NO right to resist their entry. Instead his SURVIVORS would be admonished to "sue" the perpetrators in civil court... assuming the same thing didn't happen to THEM.

The ruling is a loathsome invitation to lawlessness by police.

 

[avs11054]

So Deanimator, if it's been said here multiple times, search for it and please post some links. You are the one claiming that it is such a rampant problem, so show us where it is happening. In the case you did cite, if he was unlawfully arrested, he should be able to sue, and hopefully he is. But he certainly did it the right way rather than resisting, which puts everyone's safety in jeopardy.

And what free legal representation are you talking about? If an officer acts within department policy, he is covered by the department when the department gets sued. The department still paying legal fees though. If the officer does get personally sued, if he is a union member, the union pays the legal fees, which are paid for out of the officer's union dues, so again, the representation is not free. If the officer is not a member of the union and acted out of department policy, he gets to foot the bill on his own.

nigmalg, qualified immunity applies to officers and not to departments. It is when the officer acts within department policy. Nowhere in any department policy that I've ever seen does it state that an officer does not need to know the laws or is allowed to make up the laws as he goes along. Therefore, if the officer did this, he would not get qualified immunity.

 

[Deanimator]

And what free legal representation are you talking about? If an officer acts within department policy, he is covered by the department when the department gets sued. The department still paying legal fees though. If the officer does get personally sued, if he is a union member, the union pays the legal fees, which are paid for out of the officer's union dues, so again, the representation is not free. If the officer is not a member of the union and acted out of department policy, he gets to foot the bill on his own.

Look up the name "Jon Burge" and tell me about legal fees... or perhaps your claim is that TORTURE is within the "policy" of the Chicago Police Department.

 

[Wheeler44]

"a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,"

Wheeler44,

Again, where in the Indiana ruling does it state that the cops can go anywhere for any reason? I must have missed that part.

It's quoted and underlined above in bold print.

I also must have missed the part in the fourth ammendment where it gives people the right to use physical/deadly force to resist arrests/searches.

The Bill of Rights restricts the Government not the people. It states that the people shall be free from illegal search and seizure. It generally defines illegal as without a warrant. Of course there are exceptions to the warrant requirement. You and I both know that LEO will push the envelope, just like everybody else. I see a potential for abuse. If you cannot, then we are done here.

 

[nigmalg]

nigmalg, qualified immunity applies to officers and not to departments. It is when the officer acts within department policy. Nowhere in any department policy that I've ever seen does it state that an officer does not need to know the laws or is allowed to make up the laws as he goes along. Therefore, if the officer did this, he would not get qualified immunity.

Acting in good faith, even while misinterpreting laws, would cover an officer under qualified immunity. If you can prove an officer made up the law with abusive intentions, qualified immunity disappears. There are reasonable uses for the immunity doctrine. I'm not against it generally as it's served officers and citizens well when properly executed.

However, in a civil suit one would be suing the department for the actions of it's officer, in addition to the officer. When the officer is covered under qualified immunity, it's highly unlikely a department would continue to be liable. At that point you would have to show negligence on behalf of the department's policy.

 

[benEzra]

avs11054, there is no history of abuse of this concept, because this ruling is brand new legal doctrine created out of thin air just this week. The potential for abuse, however, is huge. It does not require good faith on the part of LEO's; it protects even actions that are knowingly, intentionally criminal, without setting any limits whatsoever.

FWIW, the ISC's ruling even admitted that SCOTUS precedent protects a right to resist an illegal arrest (United States v. Di Re, 1948), and that this right goes back hundreds of years. They then said they consider the common law and SCOTUS precedent obsolete, cast prior jurisprudence to the winds, and ruled that criminal home invasions by agents of the state may not be resisted under any circumstances using any level of force. That, as I said, is waaaaay beyond the facts of the case that served as the excuse for this ruling, and is an awful new precedent that I deeply hope gets slapped down by SCOTUS.

 

[avs11054]

Wheeler44,

It is stating that a person cannot resist an unlawful entry. It does not state that the officers are allowed to make unlawful entries.

People in this thread, and in the one that was closed after THR did its update, seem to think this ruling violates their fourth ammendment rights.

"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."

It does not. Nowhere does it say physical/deadly force can be used to resist a search.

 

[9mmepiphany]

I ask again


with out quoting case law, do you agree with this ruling? do you believe a LEO should be able to gain UNLAWFUL ENTRY into any home.

To me its the same as ILLEGAL IMMIGRATION, its wrong, and for some reason its up for debate.

I answered your question 12 post above this restatement...although I notice that you have now changed the question.

I do not believe that an LEO should be able to gain unlawful entry into any home; I think the ISC painted with too broad a brush, but I do see the logic behind their ruling. I don't see their ruling as permitting LEO to make unlawful entries into any home

 

[Shadow 7D]

it's a step by step process

"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."

It does not. Nowhere does it say physical/deadly force can be used to resist a search.

The 4th say you have a right to be secure, which makes it ILLEGAL to violate that secured except for certain circumstances, in which case it's WARRANTED

So, now that makes it Illegal entry, but more so ARMED illegal entry, which, in most places, have you have the right to resist, up to and including using deadly force to do so.

So, while it remains ILLEGAL for the cops to do what they did, you no longer can resist them, and if you do so, the fact that they were committing an ILLEGAL (CRIMINAL) act under the cover of their badge (color of law??) is, according to this, no longer a factor.

SO, a cop kicks in you door for (what ever reason, according to the ISC, it won't matter until your estate sues) and does what ever, it doesn't mater if they are in the right or wrong

BUT SEE >>> 800+ YEARS OF CASE LAW THAT SAYS IT DOES

 

[Wheeler44]

Wheeler44,
It is stating that a person cannot resist an unlawful entry. It does not state that the officers are allowed to make unlawful entries.

Now I'm just a hillbilly, but if the LEOs weren't makin' unlawful and illegal searches the the homeowner wouldn't have to resist 'em.. I guess I'm sayin' that it implies that there will be illegal and unlawful entry. By acknowledging that there have been and will be illegal and unlawful and then by removing centuries of common law and precedence to allow those illegal searches and seizures, the court does a disservice to the people.
And as for the right to use physical/lethal force to prevent those illegal search and seizures......It's implied.....

 

[nigmalg]

I also see the logic the court had to worry about here. Resisting officers with sometimes deadly force within the myriad of 4th amendment exceptions can be messy. But no matter how messy it becomes, it will never remove a right to life.

It sets a dangerously unlimited precedent.

 

[Shadow 7D]

Different angle

So lets looks at this a little different

You now tell a cop 'No you can't come in here'

He arrest you under the color of the law, and enters under the color of investigating.

4th amendment be damned.

 

[avs11054]

And you sue for this ^, and if that is what happened, you'd win.

This ruling is saying you can't get in a brawl or shootout because of it.

 

[armoredman]

By the way...

if he is a union member, the union pays the legal fees, which are paid for out of the officer's union dues,

My union dues, with EXCELLENT legal benefits as a sworn officer in this state, are $23 dollars a month. How much is ONE BILLABLE HOUR of a lawyers time? It IS effectively free. Unless the officer is convicted in a court of law for the violation prior to the suit from the civilian, he will very likely qualify for that FREE union paid lawyer.
If he isn't a union member, and the Dept doesn't pick up the suit, then he is facing the music on his own, but until the officer is either investigated and held to be outside law or policy, then the Dept is very likely to provide the defense. If I am sued for an on duty issue my attorney is the state attorney general's office.
So that argument won't work.


Wonder how the 70 cops indicted at Rampart could've used this one in thier trials if CA had this one on the books back then.