Indiana wants you

May 14, 2011 2:41 PM

As reported by Dan Carden - Court: No right to resist illegal cop entry into home In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry. David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

So if they lack a warrant - you can take that up with the fair and just court system where it is your word VS the word of the Police about the events which transpired.

And in a 2005 paper some Indiana districts report a 100% conviction rate - is that a sign of perfection in their legal system or something else?

posted by rough ashlar (112 comments total)

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

Sounds good to me. It's not like cops get preferential treatment in the court system or anything.
posted by furiousxgeorge at 2:43 PM on May 14, 2011 [8 favorites]

"a right to resist an unlawful police entry into a home is against public policy"

You know what should be against public policy too? Unlawful police entry.
posted by QuarterlyProphet at 2:44 PM on May 14, 2011 [46 favorites]

On an unrelated note, I really need to get that video surveillance system with offsite backup installed at the house.
posted by jeffamaphone at 2:45 PM on May 14, 2011 [10 favorites]

Killing OBL is clearly doing a lot to protect our freedoms.
posted by Blazecock Pileon at 2:46 PM on May 14, 2011 [15 favorites]

Editorialize much? Sheesh, you think it's better to have a shootout when police enter the wrong house?
posted by ryanrs at 2:47 PM on May 14, 2011 [4 favorites]

This is not about the police entering the wrong house. That happens all the time. This is about what happens after you ask to see a warrant and they say they don't have one.
posted by Nothing at 2:49 PM on May 14, 2011 [20 favorites]

How does what Justice David is ruling not contradict the 4th Amendment?
posted by droplet at 2:49 PM on May 14, 2011 [2 favorites]

They're not talking about shootouts, ryanrs. RTFA.
posted by hattifattener at 2:51 PM on May 14, 2011 [1 favorite]

Well, in most states the cops already would have had enough to legally enter the home in this case. Exigent circumstances would have already been met. If there is an argument going on the cops are most likely precluded from leaving the scene without insuring the safety of parties involved.

If they walk away and it's a domestic violence situation they're screwed.

This said, without a damn compelling reason I'm not letting them in.
posted by cjorgensen at 2:51 PM on May 14, 2011

Well. I don't think you should be able to forcefully resist unlawful police entry into your home, either, assuming the police show badges, etc. If you were able to do that, you'd have meth dealers and conspiracy theorizing 'sovereign citizens' all over the country in showdowns with police. If you think entry is unlawful, state that you don't agree to a search, and get out of the way. If you can get away with it, record it. Let the lawyers sort it out later.
posted by empath at 2:52 PM on May 14, 2011 [2 favorites]

If you were able to do that, you'd have meth dealers and conspiracy theorizing 'sovereign citizens' all over the country in showdowns with police.

This is the current state of affairs, as near as I can tell.
posted by Inspector.Gadget at 2:54 PM on May 14, 2011

So you're saying that it not OK to resist the cops when they get the wrong house, but it is OK if they're called on a domestic disturbance and the guy blocks the door? Issues relating to warrants, searches, and anything else need to be worked out in court, not physically at the time of arrest.
posted by ryanrs at 2:55 PM on May 14, 2011

^^ reply to Nothing
posted by ryanrs at 2:56 PM on May 14, 2011

This will be great for all the cop impersonators. There are many serious crimes committed by those who impersonate LEOs. Now this. Can you imagine, opening your door and the "LEO" demands to be let in, but has no warrant? I mean, how do you tell anymore? At least with a warrant you have a chance to flush out the fake, but now, I guess you're shit out of luck - you can only pray that this is at least a real LEO who is disregarding your rights, and not someone bent on robbing/killing you. So how about that right to be secure in your home? Or as someone might put it, how's that secury in homey working out for you, my fellow proud American?
posted by VikingSword at 3:02 PM on May 14, 2011 [39 favorites]

I'm going to protest this in my nearest Free Speech Zone.
posted by Trurl at 3:03 PM on May 14, 2011 [16 favorites]

resisting police anything is unlawful -- far as i can tell.

This is obvious bullshit and I firmly believe we would have a better, stronger Democracy and rule of law in the United States if more people resisted unlawful police action. It is too easy these days with no repercussions for Officers to pick someone up and bring them downtown, detain them, and then release them without any charges.
posted by Shit Parade at 3:04 PM on May 14, 2011 [4 favorites]

I'm saying that it should be okay to say no. If the police have reason to enter anyway, fine. That can be worked out in court later. But the default should not be that these people can just do whatever they like.

It hardly matters anyway, because they can just lie about the circumstances and will almost always get away with it.
posted by Nothing at 3:10 PM on May 14, 2011 [1 favorite]

The case that spawned this decision is a strange one to me.

If officers respond to a domestic violence call and the partner most likely to be the batterer says "no everything's ok, go away," the cops may, depending on what they saw, be able to make a case that they needed to make an entrance anyway because they felt there was imminent risk of harm.

I mean, if an officer is on foot patrol and walks past a house and looks in through the open windows to see a husband going after his wife with a claw hammer, that officer obviously doesn't need a warrant to enter the home. So what I'm getting at here is that it's strange that the PD in question apparently hasn't made the argument that this was, in fact, a lawful entrance of the home.

I also wonder what qualifies as "resisting" entry. If the cops ask to enter your home and you say "no", but you say it through the gap of a door opened as far as the chain will allow, is it resisting an illegal entry to then close that door and deadbolt it? Or is this ruling specifically saying that you shouldn't put your hands on an officer and shove them back out the do'?

Any officer making an unlawful entry also substantially risks destroying any case of any sort in the courts. Evidence - all evidence - that comes from an illegal search is inadmissible in court. If the cops illegally break into a serial killer's home and find her in the process of dismembering a body and finds further human remains in the basement freezer, they can't use any of that as evidence in court. She gets off free.

I'm just not sure what to think about. Illegal entrance is shitty and bad, but it's probably also bad to put your hands on a cop that's making a shitty, bad, illegal entrance. I don't know that a court decision from a state supreme court saying as much was a good idea either.
posted by kavasa at 3:12 PM on May 14, 2011 [2 favorites]

It is too easy these days with no repercussions for Officers to pick someone up and bring them downtown, detain them, and then release them without any charges.

The entire point of the 4th amendment was to put limits on the kind of abuse of state power that has actual political consequences down the road. It affects everything. Let us say that you are lawfully assembling and exercising your free speech at a political rally. Cops can say that in their estimation this crowd was posing a threat, and they had to pick them up - sure, they get released 24 hours later, but what happened to your ability to participate in politics and exercise your first amendment rights? And don't think this is theoretical - this kind of precautionary arresting has happened repeatedly across the country - New York, Chicago, wherever.

The police are an occupying army. They don't serve the citizens. At best, they serve some interests, though more and more, it seems they only server themselves... at taxpayers expense.

Our founding fathers could only do so much to give us the tools to resist this kind of bullshit. Somehow we've managed to fritter it all away.
posted by VikingSword at 3:12 PM on May 14, 2011 [39 favorites]

It is silly to say people should physically resist illegal police searches. In every single case, physically resisting police will result in you losing. Even if you "win" by, say, shooting the cop, do you think that's going to keep your house from being searched? If the cops want to do something, they're going to do it. You must fight it in court.
posted by ryanrs at 3:19 PM on May 14, 2011 [1 favorite]

When something like this is so obviously unconstitutional that even *I* can see it, how does something like this even get passed in the first place? O the face of it, this seems absurd...
posted by OneMonkeysUncle at 3:20 PM on May 14, 2011

I mean, if an officer is on foot patrol and walks past a house and looks in through the open windows to see a husband going after his wife with a claw hammer, that officer obviously doesn't need a warrant to enter the home. So what I'm getting at here is that it's strange that the PD in question apparently hasn't made the argument that this was, in fact, a lawful entrance of the home.

Because that wasn't the issue. It doesn't matter whether the police actually do have the exigent circumstances to enter without a warrant, or whether the warrant they do have was based on sufficient probable cause.

This case is about the situation where the police wish to enter a home to search, and the homeowner believes they don't have the right to do so, and the police insist. Has nothing to do with who turns out to have been right. The issue is whether the homeowner has the right to use force to resist police entry. And the Court decided, based on public policy, that it was better to have homeowners seek redress in court than to say it's okay to shoot cops if you turn out to have been right about their probable cause.

Or is this ruling specifically saying that you shouldn't put your hands on an officer and shove them back out the do'?

Put your hands on them, shoot them, whichever. Force is force.

I'm saying that it should be okay to say no. If the police have reason to enter anyway, fine. That can be worked out in court later. But the default should not be that these people can just do whatever they like.

Okay, you say no. They insist, and attempt to enter anyway. Do you think it's a good idea to okay using force to expel the cops, but only if the post-mortem determines they didn't have enough reason to enter?
posted by kafziel at 3:21 PM on May 14, 2011

Nobody is suggesting physically fighting a cop. But perhaps there are other things you can do. Don't open the door. Reinforce the door. Call newspapers. Call neighbors, get witnesses. Passive resistance, stuff like that.
posted by VikingSword at 3:21 PM on May 14, 2011

Don't open the door. Reinforce the door. Call newspapers. Call neighbors, get witnesses. Passive resistance, stuff like that.

None of these actions are the sorts of things for which this ruling is determining the legality. This is about resisting, which means force. The case at the root of this was about shoving a cop outside.
posted by kafziel at 3:24 PM on May 14, 2011

Obviously you don't have to open the door. Obviously you don't have to speak to them. This can only be about physical force. You don't have to help the cops, you just can't try to fight them off.
posted by ryanrs at 3:25 PM on May 14, 2011 [3 favorites]

you'd have meth dealers and conspiracy theorizing 'sovereign citizens' all over the country in showdowns with police

time to go kick Abbot Pharmaceutical's doors down.
posted by telstar at 3:28 PM on May 14, 2011

The case at the root of this was about shoving a cop outside.

OK, that's why I suggested, it leaves you horribly vulnerable. A guy intent on harming you can come dressed as a cop and scream "open the door" and barge in and you better not try to shove him out, because in case it's a cop, you're in a heap of trouble. So your choices - be killed by impostor, or go to prison for assault on a LEO. I'd rather have the option to ask for a warrant, but if he doesn't have to show me jack, and I have to let him in anyway, why bother - the very definition of Russian Roulette... is he, or isn't he - either way he doesn't give a fuck about my rights; maybe I can sue the bad guy once I'm dead.
posted by VikingSword at 3:30 PM on May 14, 2011 [6 favorites]

The article, and the comments in the article, make it pretty clear that the prevailing opinion was that it wasn't "right" for a LEO to enter your house without a warrant, and that "wrong" should be pursued in the court system, just as any "wrong" should be under our system.

Any other ruling would not have made sense.

And, I agree, the editorializing in the FPP will turn this into another cop related free-for-all.
posted by tomswift at 3:31 PM on May 14, 2011

This thread makes me sad. We're so far down the rabbit hole as to be afraid of literally just touching a police officer. And people will blame you if you say a cross word to a cop, like they did in that thread about the pedestrian joking around with a bicyclist getting a ticket.

The ruling that the court gave out is completely unsurprising given the current cultural and political climate, where if a cop is in the mind to give you a beating, you'd better just lay down on the ground and hope it doesn't go on too long. But all of this seems normal. It's sad.
posted by TypographicalError at 3:31 PM on May 14, 2011 [13 favorites]

"This case is about the situation where the police wish to enter a home to search, and the homeowner believes they don't have the right to do so, and the police insist."

I obviously understood that, thus my post. My example was there to establish the baseline reality that warrantless entry is not necessarily illegal, since it seems to me that some would argue that it is.

My comment made my question pretty obvious: how far does resisting entry go? Force is force, but is (as I suggested in my post!) closing and dead bolting the door in a cop's face "force"? What if the door was already opened when the cops arrived and you don't put your hands on the cops but you instead bar the entrance with your body, holding on to the door frame with your hands and planting your feet widely?

VikingSword - physically fighting a cop is the case that spawned the decision. You should probably RTFA. Cops responded to a domestic, husband said go away, and when the officers attempted to enter anyway he shoved one against the wall.

Finally, even if we're happy limiting it to only laying your hands on the cops, we've lived this long without codifying that in a state supreme court case, couldn't we have gone further? And doesn't this just conflict in general with court rulings in recent decades which have fairly consistently penalized police for ignoring 4th-amendment protections? I think it's worthwhile for the cops to be worried that not only will an illegal search result in the loss of the case but also that they could get socked without any real consequence for the socker, just as would be the case if they punched any random person that forcefully entered his or her abode.
posted by kavasa at 3:34 PM on May 14, 2011

Really? You want a right for someone to open up on the police with guns? Really? And after officers are dead, the police are supposed to just drive off? And who is to say it is a illegal search?

No, the idea of a right to open fire on police executing a search warrant they believe they have lawfully obtained? Wrong.

Imagine this: Goldman Sachs has 500 security guards and don't file a motion to quash. Instead, their private army opens up on the FBI.

Great fucking plan.

Please don't start making up magical exceptions to your new "shoot back" rule to make it somehow better.
posted by Ironmouth at 3:36 PM on May 14, 2011

The "impostor" argument is a strawman, unrelated to this decision. Let's not contaminate the discussion with made up scenarios to justify using force against an LEO.
posted by tomswift at 3:38 PM on May 14, 2011 [1 favorite]

When something like this is so obviously unconstitutional that even *I* can see it, how does something like this even get passed in the first place? O the face of it, this seems absurd...

Please give the number of the amendment upon which you believe you this "obvious" right is based.
posted by Ironmouth at 3:40 PM on May 14, 2011

Really? You want a right for someone to open up on the police with guns? Really?

Did I miss something? Who said that?
posted by zarq at 3:40 PM on May 14, 2011

This isn't just about DV though:

"Justice Robert Rucker, a Gary native, and Justice Brent Dickson, a Hobart native, dissented from the ruling, saying the court's decision runs afoul of the Fourth Amendment of the U.S. Constitution.

"In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally -- that is, without the necessity of a warrant, consent or exigent circumstances," Rucker said. "I disagree."

Rucker and Dickson suggested if the court had limited its permission for police entry to domestic violence situations they would have supported the ruling.

But Dickson said, "The wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad.""
posted by marienbad at 3:41 PM on May 14, 2011 [7 favorites]

sorry, meant to italicise "exigent circumstances".
posted by marienbad at 3:42 PM on May 14, 2011

for the record it's "Indiana Wants Me" not "you".
posted by tomswift at 3:42 PM on May 14, 2011

If there's an apparent problem in a dwelling, what's keeping LEOs from getting a warrant first? They can stay on the premises and wait for a judge to sign off.
posted by snsranch at 3:43 PM on May 14, 2011

"If there's an apparent problem in a dwelling, what's keeping LEOs from getting a warrant first?"

Yeah, I guess they could stand at the window and watch someone beat his/her spouse to death while they waited...
posted by tomswift at 3:44 PM on May 14, 2011

On Tuesday, the court said police serving a warrant may enter a home without knocking if officers decide circumstances justify it. Prior to that ruling, police serving a warrant would have to obtain a judge's permission to enter without knocking. 

This, however, is bullshit.
posted by Ironmouth at 3:47 PM on May 14, 2011 [1 favorite]

Really? You want a right for someone to open up on the police with guns? Really?

Did I miss something? Who said that?

The people disagreeing with a ruling that is, essentially, "You do not have the right to open up on the police with guns".


"In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally -- that is, without the necessity of a warrant, consent or exigent circumstances," Rucker said. "I disagree."

These judges are mischaracterizing the majority's opinion. Police are no more or less able to enter a home without the necessity of a warrant than they've ever been. The ruling has nothing to do with that. It is solely about whether you can use force to stop them if you think they're wrong.
posted by kafziel at 3:47 PM on May 14, 2011 [2 favorites]

Ironmouth, the new rules in play here are the ones handed down by the IN supreme court. The vast majority of fourth amendment cases in history (a brief google turned up http://www.fourthamendmentsummaries.com if you doubt me) have acted to limit police powers. Further, no one has argued that it's a good idea to open up on the cops with firearms, merely that it should probably be legal for someone to use some degree of force in resisting what they perceive to be an unlawful entrance of their home.

The same "the courts can work it out" objection that you may bring up on the side of LEOs can be brought up on this side as well. If someone shoves a cop executing a lawful warrant, then that person is going to have assault of a police officer added to their case.

snsranch, tomswift, that's really not relevant to the discussion. As discussed in this thread and in the consenting and dissenting opinions, exigent circumstances already allow for law enforcement to enter a dwelling without a warrant.

This is a very specific question of "can any force at all whatsoever be used to resist an illegal entrance". If your answer to this is "no," then you have to answer the question of "ok, what counts as force" and if your answer is "yes," then you have to answer the question of "then where do you draw the line between acceptable and unacceptable force".

Kafziel, that's a gross misinterpretation of what's going on here. Marienbad's quote should show you that:
"The wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad."

Emphasis mine, as you seem to have missed it.
posted by kavasa at 3:50 PM on May 14, 2011 [1 favorite]

These judges are mischaracterizing the majority's opinion. Police are no more or less able to enter a home without the necessity of a warrant than they've ever been. The ruling has nothing to do with that. It is solely about whether you can use force to stop them if you think they're wrong.

AH. Okay, it makes more sense now. I read the article. Didn't understand that. Thank you.
posted by zarq at 3:53 PM on May 14, 2011

Just to expand on the "reasonable" bit, the U.S. Supreme court ruled in '85 that cops can't shoot a "fleeing, non-dangerous" suspect in the back. If cops can't shoot someone that's not dangerous, what makes you think the court supports the shooting of a cop that's trying to forcefully enter a dwelling but hasn't drawn their weapon? Nonsense.
posted by kavasa at 3:53 PM on May 14, 2011

Yeah, I guess they could stand at the window and watch someone beat his/her spouse to death while they waited...
posted by tomswift at 3:44 PM on May 14 [+] [

Isn't that probably cause for entry and search? Superseding a warrant and not the same as arbitrary entry because the LEO just feels like it?

If it's so important that something must be changed right now, the burden should be on law enforcement to revamp their warrant system, make them electronic and fast.

The burden shouldn't be on the citizen.
posted by snsranch at 3:56 PM on May 14, 2011

Non-rhetorical question here. For those more conversant with the law than I am: What right do I have to resist (what I perceive to be) the unlawful entry of other people to my home? If a tax collector, or a fireman, or a salesman, or just some guy claims he has the right to enter my home, am I allowed to resist that, or does the law say I shouldn't enter into any physical altercation but seek redress later in court? If I am legally allowed (somehow) to physically resist these other sorts of people entering my home illegally, what is the argument that cops, of all the various types of people I am allowed to resist, are the one category I'm not allowed to resist? It seems like the legal logic that requires after-the-fact redress in court as a means of preventing violence would just as well apply to all cases of forcible-entry/forcible-resistance. (IANAL, obviously.)
posted by chortly at 3:58 PM on May 14, 2011 [2 favorites]

When the couple went back inside their apartment, the husband told police they were not needed and blocked the doorway so they could not enter. When an officer entered anyway, the husband shoved the officer against a wall. A second officer then used a stun gun on the husband and arrested him.

If I understand this, the line "When an officer entered anyway" implies the officer forced his way into the home. Seems to suggest an officer can currently, in Indiana, kick down a locked door, break a window, or otherwise force his way inside someone's house without reason:

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry.

"No reason at all"
posted by Shit Parade at 4:01 PM on May 14, 2011 [3 favorites]

Just to follow it up, "cannot do anything to block the officer's entry" would include, it seems, closing or locking their door.
posted by Shit Parade at 4:02 PM on May 14, 2011 [1 favorite]

The "impostor" argument is a strawman, unrelated to this decision. Let's not contaminate the discussion with made up scenarios to justify using force against an LEO.

Philadelphia Police are searching for an imposter who allegedly assaulted a woman walking near Pennypack Park on Thursday evening.

The woman told police she was walking along the 8600 block of Algon Avenue when a man approached her. He said he was a police officer before grabbing the woman while trying to drag her into the park, police said.

PORTLAND - Police are searching for a suspect who posed as a police officer and robbed an elderly Portland couple at their home.

Investigators say it happened around 4:30 p.m. at a house on the 1800 block of Atascosa.

HOLTS SUMMIT, MO -- Holts Summit police are on the lookout for a police imposter.

The incident happened early Thursday morning in the 300 block of Perry Drive.

Officers said the suspect approached the victim and asked for his driver’s license. The victim told police the suspect was wearing dark pants and a light blue uniform-style shirt.


Columbia Police have arrested the suspect in the four impostor incidents from their jurisdiction, and do not believe he is connected to the Centralia cases. In fact, investigators in Centralia are now looking into a second incident there, that happened last week, and may be tied to the impersonation on Jefferson Street Tuesday afternoon. Investigators say they have a suspect.

etc.
posted by furiousxgeorge at 4:04 PM on May 14, 2011 [17 favorites]

This is why you never ever leave your bong sitting on the coffee table.
posted by bwg at 4:06 PM on May 14, 2011 [3 favorites]

chortly - your analogy is broadly correct and helps explain why I think this is a bad decision.

bwg - I mean, that's true, but if the cops only saw it after an illegal entry it wouldn't be admissible in court. If you allowed the cops to enter for a reason not related (such as domestic violence) and you had a bong in plain view, they could arrest you for that. If you did some much as put a paper bag over it, though, they wouldn't be able to remove that paper bag, see the bong, and then charge you.
posted by kavasa at 4:16 PM on May 14, 2011

Who shot a police officer? Who claimed the right to shoot a police officer? I can't seem to find that anywhere in the case being discussed.
posted by ryoshu at 4:18 PM on May 14, 2011

Yeah, I guess they could stand at the window and watch someone beat his/her spouse to death while they waited...

That's an exigent circumstance, in which police in all 50 states have every right to barge on in without a warrant. This isn't about that.
posted by Neekee at 4:19 PM on May 14, 2011 [6 favorites]

"This is why you never ever leave your bong sitting on the coffee table."


On the other hand, this is EXACTLY why we left grocery bags full of pot on the table in the middle of the room (in the 4 man rooms, in the barracks, at Yong Son army post in South Korea). If the CO or MP's came in for some reason, they couldn't pin it on any particular person.

(note, that grocery bag of pot would cost about $15 in those days)...
posted by tomswift at 4:19 PM on May 14, 2011

ryoshu, that is correct. Kafziel and Ironmouth have invented those claims out of whole cloth, as far as I can tell.
posted by kavasa at 4:19 PM on May 14, 2011

"If the CO or MP's came in for some reason, they couldn't pin it on any particular person."

LOL, what? The Army is not the civilian world. In the Army I was in, if the 1SG saw a bong in the bricks and no one either a) owned up to it or b) ratted out whoever's it was, everyone in that room/building/whatever is getting an article 15, probably battalion level. You don't need evidence or anything else for the company or BN commander to put you on extra duty, strip your rank, and send half your pay to the army retirement home.
posted by kavasa at 4:23 PM on May 14, 2011

I mean, that's true, but if the cops only saw it after an illegal entry it wouldn't be admissible in court. If you allowed the cops to enter for a reason not related (such as domestic violence) and you had a bong in plain view, they could arrest you for that. If you did some much as put a paper bag over it, though, they wouldn't be able to remove that paper bag, see the bong, and then charge you.

"I smelled smoke, I had to go in because I thought the house was on fire."
posted by furiousxgeorge at 4:25 PM on May 14, 2011

furious - by no means am I suggesting that anyone keep their paraphernalia in plain view. I'm just explaining what I understand the strictly correct reading of the law to be, notwithstanding puerile gambits that any particular person may try to use to get around it.
posted by kavasa at 4:27 PM on May 14, 2011 [1 favorite]

If the cops want to do something, they're going to do it. You must fight it in court.

Do you believe people have the right to resist any type of unlawful action by the police?
posted by ryoshu at 4:36 PM on May 14, 2011 [2 favorites]

Law enforcement and search issues can't really be separated from drug issues in the United States. Every time a police officer enters a residence they will be looking.

I don't actually believe force should be able to be used on officers, but the idea that the court will fairly sort this stuff out is such a joke that you can't help but just throw your hands up at rulings like this. It's a mutually agreed upon fantasy.
posted by furiousxgeorge at 4:39 PM on May 14, 2011 [4 favorites]

kavasa...see, we had more rights back then.... :)
posted by tomswift at 5:09 PM on May 14, 2011

Do you believe people have the right to resist any type of unlawful action by the police?


Assuming they do, how do you think that's going to work out for them?
posted by empath at 5:19 PM on May 14, 2011

Please give the number of the amendment upon which you believe you this "obvious" right is based.

*ahem* 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 not 100% on the constitution but I'm pretty sure that bolded bit doesn't say "could be violated but should be sorted out by lawyers later if it is".

The Supreme Court argued in Berghuis v. Thompkins that a right must be explicitly invoked and that voluntarily and knowingly responding to police waives that right. Frazier v. Cupp established the right of police to basically lie.

Now who wants to place a bet on how long it takes for the Supreme Court to come up with some convoluted logic that cops convincing a person to let them in for an illegal search under threat of prosecution effectively waives their fourth amendment rights?
posted by Talez at 5:22 PM on May 14, 2011 [3 favorites]

Just to follow it up, "cannot do anything to block the officer's entry" would include, it seems, closing or locking their door.

Obviously attacking an officer trying to enter isn't going to end well, but simply closing the door (assuming they are not already in the doorway) to deny them entry? Aren't we're pretty much setting ourselves up for a "don't open the door to police" trend down the road in people who would otherwise be friendly and compliant?
posted by Avelwood at 5:26 PM on May 14, 2011

Assuming they do, how do you think that's going to work out for them?

That's a separate question, but I doubt it would work out very well at all. So, do you believe people have the right to resist any type of unlawful action by the police?
posted by ryoshu at 5:26 PM on May 14, 2011

So, um... Can someone explain to me why they would still bother with a warrant? If they unlawfully enter, you could get it thrown out - but if this ruling makes the mere request to come in and look around not subject to homeowner denial, what exactly still counts as an unlawful entry?


Time to put a lock on the inside door of my foyer. Since we can't legally record them abusing their power and beating us up, this ruling pretty much leaves physical evidence of a forced entry as the sole way to win in a "my word against theirs" contest in court.

Though I fully expect to hear about someone going on vacation to Club Fed for 20 years after "kicking down their own door" in response to a perfectly polite police request to come in for high tea, in the near future.
posted by pla at 5:33 PM on May 14, 2011

ryoshu : Do you believe people have the right to resist any type of unlawful action by the police?

Absolutely. And we have that right - And the ability to act on it - thanks to the 2nd amendment, which exists to protect us from our own government far, far more than it does to protect us from foreign invaders.

Now, you may end up dead or in a cage after exercising that right, but what the hell, damned if you do, damned if you don't - Might as well take a few out with you.
posted by pla at 5:37 PM on May 14, 2011 [1 favorite]

Whether or not it's ethically alright to physically resist a police officer, I would imagine, depends on the circumstances of the resistance. Legally speaking, though, government agents breaking the law are dealt with in the courts. Sometimes what's ethical isn't legal, but I think that comes with the territory of having ethics and laws in the first place.
posted by Marisa Stole the Precious Thing at 5:45 PM on May 14, 2011

So, do you believe people have the right to resist any type of unlawful action by the police?

If a right can't under any reasonable circumstances actually be used, then I would say that it's not a right.

Is this limited to allowing officers to enter your home? Is the decision online somewhere?

I'm sure this will go to the Supreme Court.
posted by empath at 5:48 PM on May 14, 2011

Is the decision online somewhere?

The decision is online here [PDF]. The Court of Appeals ruling [PDF] is interesting too:

"As a general rule, a defendant in a criminal case is entitled to have the jury instructed on any theory of defense which has some foundation in the evidence.'" Snell, 866 N.E.2d at 396 (quoting Howard v. State, 755 N.E.2d 242, 247 (Ind. Ct. App. 2001)). "This is so even if the evidence supporting the defense is weak and inconsistent. The evidence must have some probative value to support the defense." Id.
Barnes argues that the trial court abused its discretion when it refused to give the following jury instruction:

When an arrest is attempted by means of a forceful and unlawful entry into a citizen's home, such entry represents the use of excessive force, and the arrest cannot be considered peaceable. Therefore, a citizen has the right to reasonably resist the unlawful entry.

Barnes's tendered instruction was not covered by the other instructions given. Further, Barnes's instruction is a correct statement of the law. "Indiana law recognizes the right to reasonably resist the unlawful entry of a police officer into a person's home." Robinson v. State, 814 N.E.2d 704, 707 (Ind. Ct. App. 2004) (citing Alspach v. State, 755 N.E.2d 209, 211 (Ind. Ct. App. 2001), trans. denied). "[W]here the arrest is attempted by means of a forceful and unlawful entry into a citizen's home, such entry represents the use of excessive force and the arrest cannot be considered peaceable. Therefore, a citizen has the right to reasonably resist the unlawful entry." Adkisson v. State, 728 N.E.2d 175, 179 (Ind. Ct. App. 2000) (citing Casselman v. State, 472 N.E.2d 1310, 1316 (Ind. Ct. App. 1985)).

posted by ryoshu at 5:57 PM on May 14, 2011 [3 favorites]

A lot of these problems would be solved by continual video and voice recording by police of all actions, while on duty. Yes, I know "they wouldn't like it". That's part of the point. As human beings they need to be able to switch it off from time to time, eg to go to the toilet or take lunch, or to have a personal conversation. But the fact they switched it off would be recorded, and while on duty they should be recording, and those recordings should be going, in real-time, into multiple back-up archives that are accessible to anyone involved in a relevant case.

The technology to do that is available now and the full rig would cost you under $1000. Mobile phones are capable of it (though bandwidth is an issue): a 3G or 4G wireless internet connected mobile phone with Bluetooth camera, perhaps a very tiny one, and microphone recorder can be continuously transmitting everything the wearer sees and hears. Destroying the setup only stops it recording, it doesn't erase existing recordings.

The advantages of recording everything you see and hear are many, and not just limited to your interactions with law enforcement. When it's almost impossible to tell if someone is recording them, and a lot of people continuously record, how law enforcement (and school principals, and bureaucrats, and authorities of any kind) interacts with you, will change.
posted by aeschenkarnos at 5:57 PM on May 14, 2011 [6 favorites]

There's no need that they be impostors. Some robbers happen to be cops.
posted by a robot made out of meat at 5:58 PM on May 14, 2011 [4 favorites]

Really? You want a right for someone to open up on the police with guns? Really? And after officers are dead, the police are supposed to just drive off?

They would have plenty of opportunities to protest through the court system.
posted by ChurchHatesTucker at 6:01 PM on May 14, 2011 [10 favorites]

> I'm going to protest this in my nearest Free Speech Zone.

Iowa State has one.
posted by cjorgensen at 6:02 PM on May 14, 2011

If a right can't under any reasonable circumstances actually be used, then I would say that it's not a right.

This seems to be the crux of the decision, in fact:

We also find that allowing resistance unnecessarily escalates the level of
violence and therefore the risk of injuries to all parties involved without preventing the arrest—
as evident by the facts of this instant case

There's no possible way that resisting an unlawful order or an unlawful arrest is going to actually prevent said arrest, but once the arrest occurs, there are plenty of opportunities for redress.

I'm kind of torn on this, really.

Some friends of mine were arrested for attending an illegal party on a state park and subjected to an illegal strip search and detained for several days. The city ended up getting sued in a class action and settled for over 2 million dollars. (the arrests were later ruled to be legal, while the strip search was not).

On the one hand, if they had resisted, they still would have been strip searched and probably would have been beaten, too.

On the other hand, i don't think any amount of money can really make up for the humiliation of being strip searched, so the idea that there is redress available after being abused by the police is kind of hollow.

But the end result of this is that if you resist an order from a police officer, you're going to be worse off than you were had you not done so, which isn't really a change.
posted by empath at 6:18 PM on May 14, 2011

Our founding fathers could only do so much to give us the tools to resist this kind of bullshit. Somehow we've managed to fritter it all away.

People are too busy fantasizing about being an A-list celebrity, gossiping about has-been actors who are imploding, and arguing about which scuzzie, bottom-of-the-barrel reality show is better than to notice how their rights are being taken away, how their quality of life has been eroding, or how they are being gouged at the gas pump for no good reason -- but to admit that would mean they would have to admit that their smiles aren't white enough, and their lives are less than perfect, and Heavens to Betsey, what would their neighbors or Oprah think about that.

If people put their collective foot down, this would go away in a heartbeat and their officials would all of sudden remember how to act like human beings, but that takes something called a backbone...
posted by Alexandra Kitty at 6:43 PM on May 14, 2011 [1 favorite]

Please don't start making up magical exceptions to your new "shoot back" rule to make it somehow better.

Ironmouth, I'm mystified by your assertion that some sort of "new right" is being proposed here. The right in question has existed in common law for hundreds of years -- a fact which the decision acknowledges. The Indiana Supremes explicitly state that they're abrogating the right, which they believe is no longer necessary. From the decision:

"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."

Note, too, that the right has never extended beyond reasonable resistance. Nobody here is making up new rights, and nobody is advocating smoking the next copper that fucks with you. You have done great carnage in a field of straw men.
posted by steambadger at 6:49 PM on May 14, 2011 [4 favorites]

Overturning a common law dating back to the English Magna Carta of 1215

Nothing good ever seems to come from that.
posted by homunculus at 7:05 PM on May 14, 2011

kavasa...see, we had more rights back then.... :)

Back when? My late-60's Army would have treated you and your barracks-mates just like kavasa's Army would have.
posted by Kirth Gerson at 7:17 PM on May 14, 2011

The Supreme Court through its decisions, establishes a "floor below which rights may not sink, not a ceiling above which rights may not rise". I want to say that quote (paraphrased) is from William O. Douglas but I can not find a citation at the moment. The quote means that state courts are free to create stronger protections for their residents (e.g., NYS did not have a good faith exception to the exclusionary rule for many years after the Supreme Court ruled that one existed) but may not erode rights that have been granted by the Bill of Rights and Supreme Court precedent.

Given that, doesn't it seem that the decision of the Indiana state court will not pass constitutional muster with the Supreme Court?
posted by mlis at 7:42 PM on May 14, 2011 [1 favorite]

The police department, is like a crew, that does whatever they want to do.

I just am amazed at how I was so sure that was complete fiction when I first heard KRS say that, and it turns out it is actually true in most cases.
posted by cashman at 7:46 PM on May 14, 2011 [3 favorites]

I didn't like Ice-T growing up...I was more into Ice Cube...now I'm into Ice-T.

BUT...

The way I'm looking at it is like this:

Right of Privacy vs. Public Safety

A cop coming into a house as suggested will always be a violation of privacy...but it won't always be a benefit to public safety. Judge says let the cop do its job, any injustices can be brought into the courts.

So yeah, busting in and finding 40 Kilos of Heroin stacked up against the wall? Awesome. But what about the times you break in and scare the shit out of families, children, and especially weaselly hipsters trying to enjoy their ketchup sandwich in peace.

Regardless of how you feel about this law (yea or nay), you have to agree that there will be a breach of privacy every time the police actually don't find anything. They will have used their power and authority to gain entry into a private home...for absolutely no reason.

What is the remedy for this? Sounds like hundreds of thousands of dollars for raiding and detaining a house full of nobodies not doing anything illegal. Awesome. Pretty soon enough people will sue the cops that the higher ups will be worried about being fired from their appointed positions by the elected. The higher ups will tell the medium guys who will tell the lower guys and all their street cops to not go into the house unless you are sure because it costs us too much money every time we show up at regular people's homes.

So yeah...its not great now...give it a few years when cops are scared to knock at doors that aren't clearly marked on their sleeve tablets.
posted by hal_c_on at 8:20 PM on May 14, 2011

Pretty soon enough people will sue the cops that the higher ups will be worried about being fired from their appointed positions by the elected.

That's the part of your analysis which is probably fictional. Suing someone costs money and time not to mention the willingness to stick your neck out in front of a giant criminal "justice" machine. Walk into a poor black or latino neighborhood and you will find people whose houses have been raided or searched by the police unlawfully, who don't have the ability to sue for redress.

The likely scenario is that the status quo will continue. To wit, poor minority people will continue to have their doors knocked down because the police want to do so, while "middle class" white Americans won't.
posted by TypographicalError at 8:34 PM on May 14, 2011 [2 favorites]

"kavasa...see, we had more rights back then.... :)

Back when? My late-60's Army would have treated you and your barracks-mates just like kavasa's Army would have."

well, that would have been the late '60's

guess I was lucky, eh?
posted by tomswift at 9:16 PM on May 14, 2011

That's the part of your analysis which is probably fictional. Suing someone costs money and time not to mention the willingness to stick your neck out

I'm not sure this valid point is even lucid enough. Because relying on the lack of clout amongst the lower/middle class is possibly the more benign of the options available to a police force.

Didn't find anything when you busted in? Don't want any black marks on your record or the record of your force? Use your practiced interrogation skills to wheedle something out of 'em — they're all guilty of something — or maybe escalate until something wrong has been done. Or, you know, you've got access to some kind of contraband or another, no reason you can't just drop a little something somewhere and then "find" it. Make it clear that things will not go well for the target of your mistake if they speak up, and if they keep quiet, why, this will all go away.

And of course, if all else fails, well, are you going to let some ungrateful uppity citizen who doesn't know half of what you go through to keep them safe cost you? As long as more criminals are getting theirs than innocent citizens or police officers are getting hurt, a few collateral injuries or deaths might just be what it takes to keep things going. You know what you have to do.

Without some vigilance, things can get a lot worse than "they'll never get traction in court."

(I know — at least I like to believe — that most officers serving right now would know that kind of thinking for what it is and refuse to engage in it. But they're people, and many people succumb to the privileges of their position and various incentives to cover their asses... even people who haven't outright embraced corruption.)
posted by namespan at 9:28 PM on May 14, 2011 [1 favorite]

As a lifelong resident of the state of Indiana, I am interested in concrete advice on what to do about this situation. Who can I call?
posted by IndigoRain at 9:30 PM on May 14, 2011

move out of Indiana
posted by Shit Parade at 9:53 PM on May 14, 2011 [1 favorite]

Pretty soon enough people will sue the cops that the higher ups will be worried about being fired from their appointed positions by the elected.

In Seattle we've had a string of recent police brutality cases. One of the biggest was a cop who told a suspect, "I'm going to beat the fucking Mexican piss out of you homey", and proceeded to stomp his head while he was down on the pavement.

The higher ups response? This week they decided to suspend him for a month. Even though the community is outraged and the events have provoked the FBI and Justice Department to investigate this string of violence and racial slurs.

The idea that the courts and police will protect us from the police has been proven wrong again and again. Ideally and theoretically, relying on the courts sounds wonderful, but the actual evidence shows we need more protections. The cops here have no incentive to avoid breaking into houses now, so why not do that with any suspect?
posted by formless at 10:03 PM on May 14, 2011 [5 favorites]

"For those more conversant with the law than I am: What right do I have to resist (what I perceive to be) the unlawful entry of other people to my home?"

It depends on where you live. Some states allow you to use violence to their home against intruders, others require that you make an attempt to retreat before resorting to violence.
posted by Jacqueline at 10:40 PM on May 14, 2011

Yeah. Resisting. You can be arrested for "resisting" for anything the cop doesn't like. It doesn't matter if there was nothing illegal going on and no cause for the police to be involved, if you do anything but fall down limp with your hands behind your neck, you're resisting. Even if you're handcuffed and bleeding and sprayed with mace when they bring you in.

Welcome to your felony charges. There's a reason I haven't trusted the police since I was 18.
posted by threeturtles at 11:03 PM on May 14, 2011

This is really terrifying that the Supreme- oh wait, you mean INDIANA Supreme Court. Npever mind, wake me up when the real Supreme Court has an opinion.
posted by happyroach at 12:03 AM on May 15, 2011 [1 favorite]

If your local police have near a 100% conviction rate, then please just move elsewhere. You locality has basically become a mafia run police state.
posted by jeffburdges at 1:41 AM on May 15, 2011 [3 favorites]

Npever mind, wake me up when the real Supreme Court has an opinion.

Are you really sure you want to put your rights in front of the likes of Scalia and his gang?
posted by Blazecock Pileon at 1:50 AM on May 15, 2011 [1 favorite]

Personally I am not moving out of Indiana, and I am in the Chicagoland area which is not as, shall we say conservative, as the rest of the state. I don't know where exactly the conviction rate is near 100% but I'd take a wild stab in the dark that it's not here. Despite working for a lawyer and knowing a lot of the lawyers and judges up here, I deal with the civil courts, not criminal.
posted by IndigoRain at 2:19 AM on May 15, 2011

How long do police have to be in your house before the 3rd Amendment starts to come into play?
posted by autoclavicle at 2:34 AM on May 15, 2011 [3 favorites]

kavasa: "
bwg - I mean, that's true, but if the cops only saw it after an illegal entry it wouldn't be admissible in court. If you allowed the cops to enter for a reason not related (such as domestic violence) and you had a bong in plain view, they could arrest you for that. If you did some much as put a paper bag over it, though, they wouldn't be able to remove that paper bag, see the bong, and then charge you."

True, an illegal search would get thrown out but ...

1. The cops would then have a reason possibly to go back and hassle you, i.e. catch you in the act;

2. Who wants to go through the hassle of getting the illegal search thrown out?

Better for the cops never to see anything iffy from the outset, that way they have fewer ways to make your life miserable.

But then, potheads are less likely to be motivated to clean up ...
posted by bwg at 2:40 AM on May 15, 2011

The entire point of the 4th amendment was to put limits on the kind of abuse of state power that has actual political consequences down the road.

The 4th amendment only works if the idea of a "warrant" has a meaning: if police have no special powers or immunities that citizens don't have, then they have to go through this process to get a special warrant, and the details of the process matter.

If every crime from "breaking and entering" on has an implicit "except it's okay if you're a cop" attached, then what's the point of bothering with the process to make it super-duper okay?
posted by roystgnr at 9:16 AM on May 15, 2011

Pretty soon enough people will sue the cops that the higher ups will be worried about being fired from their appointed positions by the elected.

I don't know about that. Bringing cases to court is a big hurdle, and is out of reach for many people.
posted by me & my monkey at 10:16 AM on May 15, 2011

Are you really sure you want to put your rights in front of the likes of Scalia and his gang?

Simple answer - just Incorporate and become a 2X person under law!

If your local police have near a 100% conviction rate, then please just move elsewhere. You locality has basically become a mafia run police state.

From elsewhere on the internet:
In Russia, cases heard by judges have a conviction rate of about 99 percent. In jury trials it’s around about 15 -20 percent less Too high a conviction rate
Countries like Japan have a conviction rate of 99.97 percent, and China has a conviction rate of about 98 percent

Now that article claims a US rate of 60-80%, other sources claim 87% for the US. But parts of Indiana are not the only ones.
Dallas County District Attorney Craig Watkins frequently boasts of his felony prosecutors' nearly perfect conviction rate. He says prosecutors successfully get convictions in 99.4 percent of cases handled by his office.

At 100%, 99.4% or 87% or 50% or 1% .... when does one have:
1) The rule of law
2) a police state
posted by rough ashlar at 11:50 AM on May 15, 2011

I think you would have to take in to account crime rates and the number of people who are being charged to figure that.
posted by furiousxgeorge at 1:12 PM on May 15, 2011

I think that conviction rate could be very high in the best case of a DA only bringing formal charges where they are clearly warranted (not that I think that was happening in Dallas).

I would be interested to see the conviction rates of those below the poverty line versus those of middle or upper incomes. That might be a better measurement of the quality of the justice system.
posted by thebestusernameever at 2:57 PM on May 15, 2011

Marine murdered by SWAT at home Tucson, Arizona, May 5, 2011. More.
posted by telstar at 10:56 PM on May 15, 2011 [1 favorite]

Wow, that is some crazy slanted reporting, there. A slightly more sane report, which doesn't toss around shit like "typical tax-feeder", makes what happened a little more clear - SWAT showed up to serve a warrant, suspect points an AR-15 at them, and what happens is exactly what you'd expect to happen when you decide it's a good idea to point an assault rifle at a SWAT team.

This decision is to try to avoid this exact scenario, by telling people they shouldn't try to settle it with a gun. Because if you do, it will only end in tragedy.
posted by kafziel at 11:15 AM on May 16, 2011

SWAT showed up to serve a warrant, suspect points an AR-15 at them, and what happens is exactly what you'd expect to happen when you decide it's a good idea to point an assault rifle at a SWAT team.

I'm really unclear on whether he understood it was a SWAT team and whether they identified themselves before opening fire. If they got the wrong house, if he wasn't engaged in illegal activity and expecting a police raid, why wouldn't he think it was gangs or something?
posted by empath at 11:19 AM on May 16, 2011 [1 favorite]

Well, whatever the exact details the guy who was shot will have his day in court to....oh.
posted by furiousxgeorge at 2:20 PM on May 16, 2011 [1 favorite]

WTF was a SWAT team doing serving a frakin' warrant? He must have been accused of some heavy shit.

Pima County Sheriff's deputies told KGUN9 News that the SWAT team showed up at the home to serve a search warrant, although they won't say the reason for the warrant

Huh. Fancy that.
posted by ChurchHatesTucker at 4:16 PM on May 16, 2011

WASHINGTON — The Supreme Court on Monday ruled against a Kentucky man who was arrested after police burst into his apartment without a search warrant because they smelled marijuana and feared he was trying to get rid of incriminating evidence.

Voting 8-1, the justices reversed a Kentucky Supreme Court ruling that threw out the evidence gathered when officers entered Hollis King’s apartment.
posted by furiousxgeorge at 9:24 PM on May 16, 2011

I disagree that DAs should only bringing "open & shut" cases represents an improvement, thebestusernameever. There will always be sticky cases that might go either way.

We want the cops doing the best job they can collecting evidence; a skill that'd declined across the U.S. over the last decade. We want the DA doing the best job possible presenting that evidence. Yet, we also want the cops and/or DA to back off when the prosecution doesn't benefit society. And we want them taking risks when the prosecution obviously does benefit society.

In this case, we need the police department to lose tens of millions in a wrongful death suit.
posted by jeffburdges at 6:40 AM on May 17, 2011

update
posted by IndigoRain at 1:16 PM on May 18, 2011 [1 favorite]

Interesting to see Republicans leading the way on that. If it's one thing that frustrates me about Democrats its' the police-union and soccer mom law-and-order pandering to police departments.
posted by empath at 1:29 PM on May 18, 2011

It's the paranoid gun-nut fantasy of chasing the evil gubmint off your land with the might of your God-given arms. Of course the Republicans are spearheading that.
posted by kafziel at 3:03 PM on May 18, 2011

kafziel : It's the paranoid gun-nut fantasy of chasing the evil gubmint off your land with the might of your God-given arms. Of course the Republicans are spearheading that.

Or perhaps some of us would just like to see "rule of law" actually work in both directions for a change?

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated".

Between no-knock warrants and now no-warrant entry, my house doesn't feel all that "secure" against the "evil gubmint".
posted by pla at 7:41 AM on May 19, 2011