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

[dmancornell]

Not me...I've got nothing to hide. If the cops want to search my house, come on over. You'll find nothing here linking me to drugs or terrorism.

What's your point? Your acquiescence is irrelevant, and kinda sad really.

 

[9mmepiphany]

I was looking on another forum and found this from a resident of IA who is familiar with their laws...both before and after the ruling...and who is know for his advocacy of personal rights. I found it an interesting take from someone who will be directly affected...or not.

This is open material on an open forum...no copyright violation involved:

- This ruling has nothing to do with someone "kicking in your door at 2am." That happens with a warrant. This ruling has NOTHING to do with entry by warrant. In the hypothetical of your door being kicked in, our legal response before and after this ruling has not changed at all.

- This thread, and countless others on other forums, keep presenting this scenario and that scenario, NONE of which are realistic. They suggest 1 too many Clint Eastwood movies. The situations in which this ruling will have any effect at all are VERY limited.

- The 2 dissenting judges actually agreed with the entry part of the majority decision. They only objected because it wasn't limited to domestic dispute calls explicitly. In reality, IT IS limited to domestic dispute calls. When else does a LEO come to your door and want entry w/o a warrant? It doesn't happen. The majority showed BRILLIANCE by not codifing that it only applied to DD situations. They realized, de facto, that it's true but, by not codifing it, they prevent slick lawyers of the future from arguing what is and is not a domestic dispute call.

- Indiana has no "Castle Doctrine" as is typically defined by other states. At least, not one codified as such. We have a right to defend a dwelling or curtilage, and not retreat, but that has been a part of Indiana 35-41-3-2 for decades (the no retreat part is newer) and has ALWAYS excluded LEO's. There is a mountain of case law that does so. In the case of a warrant, it wouldn't matter anyway.

- In summary, all this ruling says is that, if a reasonable person would assume that you understand that a LEO is requesting to enter your dwelling w/o a warrant, that you now have no right to refuse. It has nothing to do with your door being kicked in at 2am (I'd really like those who keep coming up with this to take a double dose of maturity.) All this is doing is preventing you and/or the LEO(s) from ending up dead/injured and moving your battleground to a courtroom (where, frankly, you have a MUCH better chance of prevailing.) Again, GET THIS THROUGH YOUR HEAD, the only time this ruling is going to make ANY difference is on a call that puts a LEO in a situation of needing to enter, immediately, w/o a warrant. When does that happen? ON A DOMESTIC DISPUTE CALL. Guess what? In 2010, over 90% of calls that required a LEO to go to a private residence in Indiana, w/o a warrant, were domestic disputes.

Calm down, READ THE ENTIRE MAJORITY DECISION, and try to understand what it says. The sensationalist media isn't going to do it for you because it would pour cold water on their feeding-frenzy story. You have to do the work yourself.

Link

 

[avs11054]

You're wrong, the only existing legal precedent is the admission of evidence gained during such a warantless entry *after* the homeowner consents to entry.

The latest SCOTUS ruling says the mere belief that evidence is being destroyed preempts the 4th Amendment, which is an entirely new assault on civil rights.

United States vs McConney

 

[dmancornell]

United States vs McConney

That is all in the context of probable cause. This new ruling ignores that entirely.

 

[avs11054]

This new ruling only re-inforces US vs McConney. Justice Ginsburg wrote "“How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?”

This is hardly what happened in this case.

Even if the officers were at this apartment by mistake, they smelled burning marijuana. This is destruction of evidence. Their entry is lawful based on U.S. vs McConney. Again, all this ruling did was re-inforce that. Officers have been allowed to enter a residence based on destruction of evidence for some time.

 

[robhof]

If the victim of illegal police entry; 1st call the news channels and then a lawyer, as stated previously, an illegal entry is unacceptable and the only recourse is the court of public opinion and civil punishment. The Dade county Fl cops several years ago were known to break in on annonomous tips and when owners complained about the damage; the reply was sue us; the Miami Herald got wind and all the complaintants met and filed a class action suit for several million. To pay(the county lost) they reduced the size of the police force and stopped breaking in without a thorough investigation first.

 

[ATBackPackin]

I was looking on another forum and found this from a resident of IA who is familiar with their laws...both before and after the ruling...and who is know for his advocacy of personal rights. I found it an interesting take from someone who will be directly affected...or not.

This is open material on an open forum...no copyright violation involved:



Link

My question then is if it is only for DV then why didn't they put that clause in there??? They leave this waaaaaaaaay to wide open for interpretation by the officers in my opinion.

 

[kludge]

I was looking on another forum and found this from a resident of IA who is familiar with their laws...

- Indiana has no "Castle Doctrine" as is typically defined by other states. At least, not one codified as such. We have a right to defend a dwelling or curtilage, and not retreat, but that has been a part of Indiana 35-41-3-2 for decades (the no retreat part is newer) and has ALWAYS excluded LEO's. There is a mountain of case law that does so. In the case of a warrant, it wouldn't matter anyway.

Link

If "no duty to retreat" is not "castle doctrine", then what is????

 

[9mmepiphany]

My question then is if it is only for DV then why didn't they put that clause in there???

...my understanding is to foreclose the argument of what a DV situation was

If "no duty to retreat" is not "castle doctrine", then what is????

...you'd have to ask someone from IA...I think the key phrase is "At least, not one codified as such". They also have lifetime CCW...without renewal

 

[ATBackPackin]

...my understanding is to foreclose the argument of what a DV situation was

I'm sorry (and this is not a jab at LEO), but if the Supreme Court of IA cannot determine what is DV, then how the hell are the LEO's supposed to?

[redacted political rant]

 

[lobo9er]

all this ruling says is that, if a reasonable person would assume that you understand that a LEO is requesting to enter your dwelling w/o a warrant, that you now have no right to refuse.

which is a bad thing. Lots of room for intentional abuse and accidental.

and also this person left out, no right to refuse ILLEGAL ENTRY. That may include but not limit to a warrantless no knock entry. Which would be illegal.

Calm down, READ THE ENTIRE MAJORITY DECISION, and try to understand what it says.

I have read it and understand it. And disagree with it.

 

[lobo9er]

As 9mmepi pointed out since we are all ignorant of law and we could never understand all the reasons why police have to enter our home, it may be an example of the power of writing law so that common people cant understand. Its a pretty simple trick that the ruling class has always Liked to play.

 

[ilbob]

[redacted political rant]

Police misconduct of this type has been winked at by the courts for a long time, and will continue to be winked at. I have no idea how to fix these kind of problems. Fortunately, they are relatively uncommon. They are not especially rare, but not the norm, at least not yet.

The only real answer seems to make the individual officers involved personally liable in some way. But I don't know how to make that work either since guess who investigates these cases? The most common thing that happens even in the most egregious of cases is the PD investigates itself and issues a report praising the officers involved. Human nature I guess. Even places that have supposedly "independent" agencies looking into this kind of thing are rarely any better.

In Illinois it is against the law for the department or the city to pay punitive damages assessed by a jury against an individual police officer. Don't know how it is in other places. Maybe the answer is to stop suing the city and the department and only sue the individuals involved, and only for punitive damages. But, law suits are mostly about money and there would not be much money in that for the lawyers, so that is not viable either.

It might be that if the citizens of Indiana are annoyed enough about this issue that they could have a constitutional amendment added to the state constitution banning such things. Otherwise the courts are always going to side with the cops in these cases.

 

[Neverwinter]

all this ruling says is that, if a reasonable person would assume that you understand that a LEO is requesting to enter your dwelling w/o a warrant, that you now have no right to refuse.

which is a bad thing. Lots of room for intentional abuse and accidental.

and also this person left out, no right to refuse ILLEGAL ENTRY. That may include but not limit to a warrantless no knock entry. Which would be illegal.

There's another failure in the laws of IN. Their "castle doctrine" laws specifically exclude LEOs. So even without this ruling, you wouldn't be able to mount a defense against a LEO acting illegally.

We have a right to defend a dwelling or curtilage, and not retreat, but that has been a part of Indiana 35-41-3-2 for decades (the no retreat part is newer) and has ALWAYS excluded LEO's. There is a mountain of case law that does so. In the case of a warrant, it wouldn't matter anyway.

 

[Grey_Mana]

I don't care at all about the specifics of the case; I care about what the judges decided the law now is. I care about how DAs and judges will punish me - I only care about the parts of the decision that will be cited and quoted, not the history.

If citizens can't lawfully resist a cop unlawfully entering a home, is a citizen's resist of rape by someone who happens to be a cop legal? As a legal matter, if a cop is walking down the row blowing citizens' brains out one by one, is it lawful to resist then? As a legal issue, this court ruling seems to say no - it would be illegal to resist a cop regardless of the depravity of their illegal actions. If there were any limit (for example, what a reasonable person would do), then the court's ruling is clearly wrong.

 

[Bookworm]

Wow, 6 pages of comments. If anyone did in fact mention the federal protections, I must have missed it.

After reading of the Moreno case (in WI I believe) I discovered there are 12 states that permit resisting police who are in the process of unlawful acts.

I'm wondering, why so few. The Supreme Court of the United States has, twice, ruled that citizens have the right to resist unlawful police activity. In the Bad Elk case, they held with even deadly force if necessary. This would fall under 9th amendment rights.

A right the supreme court acknowledged and upheld cannot be expunged by the states. If the states had a compelling interest to limit this right, the burden lies on them to prove it and it must be as minimally intrusive as possible vice the complete erasure IN just did.

References: John Bad Elk, Di Re cases.

 

[Gag_Halfront]

I hate for my first post to be contentious but there's a lot of stuff in this thread that I just don't grok. For example, all the references to IA. The ruling in question came from the Indiana court. Indiana is IN. There's no such place as "IA". (kidding, of course)

Also, there's all this stuff about gun fights and dead people and violence... The problem with this ruling, which _has_ been stated by a couple people in this thread but ignored by others, has nothing to do with castle doctrine, self defense, or any other macho mumbo jumbo. The way I read it, the problem is, if somebody wants to do something that is against the law, you cannot even politely ask them not to. The ruling does say something about battery, but the point here isn't that you can't empty a clip into the guy kicking your door down.

I'll illustrate.

Not the point:
Police officer: OPEN UP MO-FO, WE'RE COPS AND WE'RE COMING IN!!!!!!
Victim: OH NO YOU ISN'T! I'MMA BUST A CAP IN YO AZZ!!!!
<HORIBLE VIOLENCE ENSUES WHICH USED TO BE LEGAL BUT NOW ISN'T! OH NOES!!!!>

The Point:
Police officer: Excuse me sir. I'm going to come into your house, use your toilet and drink your last beer.
Victim: I'd really like you to not do that. Please don't.

In other words, there's a lot of huff and puff about the 4th amendment, but IMO this goes against the 1st, 3rd, 4th, 5th, and 9th. It's a terrible abomination and the court should be ashamed. I can hardly believe this is a Mitch Daniels appointee. If Daniels doesn't come out strongly against this, he's going to have a difficult time running as a conservative next year.

-- David

 

[basicblur]

Just sitting here listening to The O'Reilly Factor-in his Is It Legal segment the recent Indiana court ruling was discussed-one of those rare occasions where all 3 participants agreed it was a bad ruling and would go before SCOTUS.

When former prosecutor Lis Wiehl admits it's a mistake, it's gotta be an obviously bad decision!

Let's hope SCOTUS concurs.

 

[Bookworm]

O'Reilly.....Love his show, I watch it every morning (except for a few days after the bin laden killing - why not report it and MOVE ON rather than harp for a week on it.)

He threw gun owners under the boss monday night. According to him, citizens don't need "assault weapons".

He's usually pretty reasonable. I'm wondering if he's aiming for office, he's tried to "center" his position the last year or so. Or fallout from liberal groups onto sponsors like what happened to Beck maybe?

 

[Zoogster]

While this will likely get lost because it is six pages in, there is an additional update to related police powers:


Police no longer need a warrant to Constitutionally bust down a door and raid a home.

http://www.latimes.com/news/sc-dc-0517-court-search-20110516,0,6820148.story

Supreme Court gives police a new entryway into homes

The justices in an 8-1 decision said officers who loudly knock on a door and then hear sounds suggesting evidence is being destroyed may break down the door and enter without a search warrant.

"When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen may do," he wrote. A resident need not respond, he added. But the sounds of people moving and perhaps toilets being flushed could justify police entering without a warrant, he added.

So now just the sounds of people moving if drugs are alleged to be suspected at the location is enough to Constitutionally bust down a door without any need for a warrant.

In fact in the case in question they actually had the wrong address, but did in fact find drugs.


Consider infamous cases like Waco where they knew for a fact there was no drugs, but they lied anyways to use the exemption to allow national guard helicopters to be used. Such allegations when they give additional benefits are sure to be exploited.
Now all any local, state, or federal law enforcement need to do is allege, even falsely that they suspect drugs and hear someone moving inside to break into any home they wish. No warrant necessary.

 

[Deanimator]

In Illinois it is against the law for the department or the city to pay punitive damages assessed by a jury against an individual police officer.

Likewise in Ohio.

If you want to deter unlawful behavior by cops, you're going to have to go after the individuals so that they're AFRAID to act out. And it's going to have to be done in a variety of ways, from suing individual cops for punitive damages, to recording what they do then comparing it to their written official statements. Where there's clear dishonesty, make it widely known to every criminal defense attorney in earshot. By LAW evidence of past dishonesty in statements has to be disclosed to defense counsel. No prosecutor with two brain cells to rub together will put a cop with such a documented record on the stand so that he can be flayed alive by the defense. I imagine it's pretty hard to go anywhere in law enforcement if nobody will even let you testify to your own name and birth date.

 

[rbernie]

Closed due to terminal thread veer.