Skip to comments.(IN State) Supreme Court Reaffirms Ruling In Officer Resistance Case
Posted on 09/20/2011 12:41:36 PM PDT by FunkyZero
INDIANAPOLIS -- The Indiana Supreme Court on Tuesday reaffirmed its earlier ruling in a controversial case involving unlawful police entry. The court granted a rehearing, then supplied a five-page opinion on its May 12 opinion that declared that Hoosiers no longer had a legal right to resist police officers who enter their home without a legal basis to do so.
(Excerpt) Read more at theindychannel.com ...
I agree with your take on things.
What I also find interesting is how many back-flips the police are willing to do to get assure illegal immigrants they have nothing to fear from calling the police, then they abuse citizen’s fourth amendment rights at will.
"This holding only applies to police officers who are acting in their official capacity and performing official duties. If they are not in their official capacity, you can batter them to your heart's content."
IF he doesn't identify himself as a police officer then your premise holds. If he does, it must be assumed by the homeowner at that time he is under official duty and you cannot resist him once his identity as a police officer is established. This is the crux of the argument, of course it is illegal to interfere with a police officer when he is performing his duties, that has always been the case. Boiled down this decision says "The homeowner cannot determine at the time of the search whether or not the search is legal. He MUST submit to it and file his grievance afterwords."
If a police officer goes to the wrong home address accidentally and performs search you cannot resist them even knowing full well that they are in the wrong, he is acting in his official capacity and lets face it, **** happens. This is to protect both the homeowner and the police officer, don't escalate the situation by resisting, go along with it and things will get ironed out later.
If your neighbor who is a cop comes home and finds his wife missing, and he suspects she is having an affair with you, if he walks into your house looking for her and you know he is a police officer You cannot resist the search, period. How do you know he didn't see her running into your house bleeding being chased by a guy with a knife? Absurd example I know, but it makes my point that the courts have determined that the officer is to be submitted to, your "opinion" of the legality of it is not an excuse to resist.
Determination of whether or not the search is legal, or whether he is under official capacity, cannot be determined by the homeowner at the time no matter how blatant the illegalities of it are. You can not resist, only submit and then report it later after he identifies himself as a police officer, period. This is the key to the whole argument here - Even in the case above knowing full well the officer was not acting in his official capacity, if you resist, you are guilty no matter what the outcome and punishment of the officer.
Most of the people here look at the ruling and think that it has closed all the doors to using the castle doctrine as a defense to a charge of battery against a police officer. However the job of a defense attorney is to look for ways around a law that their client has broken. In this case the court clearly left a door open for the use of the defense if it can be proven that the police officer was not acting in his official duties or that the officer was acting outside the course and scope of his legal duties as a safety officer.
The visceral reaction of most of the posters here is not the way you analyze a statute if you are a defense attorney or even a judge. The defense attorney will look for loopholes and jump through them. In this case the court left open a small loophole which, if given the right set of facts, is big enough to drive a Mack truck through.
If it is shown that the police officer was acting on a personal errand, such as looking for his cheating wife, then a homeowner could use the defense. It won’t mean he won’t be arrested and charged, but a good defense attorney can raise the defense given the proper facts.
Most of the posters here, I suspect, are just armchair law students or not schooled in legal analysis at all. FWIW, I am an attorney. I see a loophole in the opinion. As a rule, that is what people pay me to find. That is what lawyers do. You can argue that the decision closes the door, but the door is not locked, and the back door is still wide open.
Hello, darling. So nice to see you.
#1, the ruling in no way allowed a LEO to rape your wife.
#2, Stop and think. If you think a search is illegal, is it better to shoot it out with the cops at 3:00, when drunk, or is it better to argue for exclusion and damages later?
You have all the earmarks of a troll, but let's see if you can accept this reasoning.
They want the right to resist any entry they deem illegal. So what are the SWAT cops going to do when such a person displays a firearm or shoots at them? The SWAT team is going to kill them. And even if the search was improper, they will still be quite dead.
Their might be a large civil award to the survivors, or their might not be, but the homeowner is still very dead.
>>They are saying that a police officer can now bust down your door and rape your wife in front of your very eyes and YOU CANNOT LEGALLY RESIST HIM. Period.
>Entry and search are one thing. Rape is another.
Really, and here I thought rape was defined as a sort of ‘entry’ itself... i.e. penetration.
>Please, do not post such stupidity. It makes us all look bad, not just you.
Except that how are you supposed to be able to resist one illegal activity when their entry is already illegal?
(And what if during their unwarranted ‘search’ they are planting something to be found during a warranted search later?)
Not exactly. By reading the case, one can discern that putative defendants to a charge of resisting entry are seeking is the right to raise an affirmative defense that they used reasonable force to curtail an entry they reasonably believed to be unlawful. The Indiana Supreme Court has not provided any "loophole" that provides access to the affirmative defense, when the unlawful entry is made by the police. The court points to the right to civil remedies, and the availability of a motion to suppress evidence; and says these are adequate.
The court openly says it finds this to be the best public policy - IOW, the court admits it is setting policy. It is making this public policy in a case where the affirmative defense is not available, because the entry was lawful.
Link to PDF of amicus brief by Indiana state legislators. In this brief, the amici argue that the public policy concerns underlying the self-defense statute support a right to reasonably resist unlawful entry by police.
And I understand exactly what you’re saying. I would also do what needs to be done, and then hire someone exactly like you to stand in front of a jury and convince them that the law in this particular case was never meant to cover that particular circumstance, and pray we had some sensible people that day.
Your counsel will need to find another line of argument, and of course may seek any other remedy that is available under the law.
With regard to this case, I would agree with you.
If you call about a fight in front of your home, you obviously haven’t given permission for the police to enter your home.
Thus calling 911 is not an automatic pass on the fourth amendment. It depends.
Either one will be deterred if a few folks in cop uniforms get shot at, whether it is cops or thugs in the uniform.
The way I see it is that anybody rushing through the door without a proper warrant is a thug.
The cop DOESN’T have to enter as long as ...
The women who called 911 comes outside, everyone else comes outside, and they all agree that noone is left inside except the father/husband/man.
Is someone, anyone, appealing this??
What if the homeowner asserts a belief that the person was a robber wearing a stolen or fake police uniform, given that there have been documented cases of robbers doing precisely that?
Should a belief that the act was unlawful, no matter how reasonably held, be considered a defense?
(from the other thread):
Playing devil's advocate, the judge may have meant the term "unlawful police entry" been trying to refer to actions by cops which are facially legitimate, but which might at some later time be found to have been unlawful for some reason unknowable by the cops on the scene. Viewed that way, his argument would not be unreasonable, even though I disagree with it in some measure.
Essentially, the question the judge may have been trying to answer would be: "If a cop wishes to enter a person's dwelling with a facially-valid warrant, and a person articulates some basis for believing that a court which examined all the facts surrounding the warrant would find it to have been unlawful, does such articulable belief form sufficient basis for the person to resist entry?" The judge may have been concerned that answering in the affirmative would give a green light for people to resist warrant service on the slightest pretext.
My argument would be that if the warrant is facially valid for the search, and the person cannot demonstrate some reason why it is not, the person's belief that the warrant is invalid, no matter how reasonable that belief may be, is not sufficient basis to deny the search. HOWEVER, I would suggest that a person who is accused of having acted unlawfully while resisting a search has the right to have all factual matters related to the legitimacy of the search considered by the jury which would be instructed that if it finds that the search was in fact unlawful, it cannot convict the defendant for actions undertaken to resist it.
Essentially, I would require a jury to acquit if if found that either:
But you can't really make it about the particulars of this case. This case is actually pretty easy. The woman was a legal resident of the home and authorized the cops to enter. Another resident shouldn't be able to resist their entry under those conditions. I'm sure the founders would have said that the cops should have the authority to enter in this case, but that hardly justifies the epic tangent the Indiana Statist Supreme Court went on, saying that even illegal entries must not be resisted, so long as they're perpetrated by cops. Ludicrous.
The law used to allow a defendant to present the affirmative defense, if the entry or attempted entry was unlawful. If the entry was lawful, the affirmative defense never did exist.
The case is decided, fini. It was heard TWICE by the highest court in the state!
The Court has the power to make and change common law, so that form of the affirmative defense is gone gone gone.
The legislated affirmative defense now has a judicially created carve-out, and the legislature can amend the law to "undo" the holding of the Indiana Supreme Court.
So the Indiana Supreme Court went on to make law in the field of illegal entry.
I sense you have another line of thought in your remarks, and I think thre is no need to find the state of mind of the police conducting the entry. All of the reasonableness (state of mind) inquiry is viewing the defendant.
If the entry was lawful, but the defendant reasonably believed it to be unlawful on its face, I would expect that such a thing could have been usable as an affirmative defense, although it would rarely be applicable. The fact that a reasonable person would regard a search as facially unlawful would normally tend to imply that the search was conducted in unreasonable fashion, and was consequently unlawful. The only situation where such an affirmative defense would be meaningful would be if some condition, of which the cops were not aware, prevented the defendant from recognizing the legitimacy of the search. For example, suppose the defendant (target of the warrant) was a foreign national from some particular country, and the cops--being aware of this--got a warrant printed out in the common language of that country but unfortunately not in a language the defendant happened to read. The defendant should not be prosecuted for refusing entry to the cops who failed to give him a warrant he could actually read, but the fact that the cops didn't know what language the defendant could read should not imply that the search wasn't lawful.
Otherwise, do you agree with the importance of distinguishing between facially unlawful acts and acts which were facially valid despite being illegitimate? If cop #1 uses perjured testimony to get a warrant, and cop #2, without knowing of the perjury, uses the warrant to conduct a search, the search should be regarded as illegitimate but that doesn't make cop #2 a robber. On the other hand, if a cop tries to enter 742 Evergreen Terrace with a warrant which is written out for 547 Morning Glory Circle, and persists in trying to enter even after the discrepancy is pointed out, such a cop fails to be performing his official duties and should be regarded as the robber he is.
A defendant should be entitled to have a jury consider whether a cop seeking a warrant actually had a good faith belief that it would turn up particular evidence of a particular crime, and that all the evidence given to the warrant judge was truthful. Note that a meaningful inquiry into such a question may entail evidence from witnesses who had never been cross-examined prior to their appearance in trial court, so the fact that a judge signed off on a warrant does not imply that it was in fact issued on the basis of probable cause. Suppose, for example, that Officer Jones got a warrant for some address on the basis that drug activity had been observed there two months ago, but on cross examination in trial court he admitted that six weeks ago the landlord had called police to clean up a meth lab left by an evicted tenant, and he (Officer Jones) had been involved with the cleanup. Would not a defendant have the right (whether or not a judge would allow it) to have the jury consider whether Officer Jones really had good faith probable cause?
BTW, I would aver that for a judge should censor truthful arguments by the defendant is an abrogation of the right to jury trial. If an omniscient jury would acquit someone, but a judge withholds information from that person's jury so as to score a conviction, then the defendant's guilt wasn't decided by a jury--it was decided by the judge. For that matter, if a defense wants to argue that the jury should acquit him because the weight of the defendant's knife, in grams was less than the weight of a steam locomotive in ounces, the defense should be allowed to argue that, provided that (1) the defendant is personally willing to waive any claim of inadequate counsel, and (2) the prosecution is then allowed to inform the jury that there is no statutory relevance to the relative weight of the items in question. The jury should be entitled to make of the argument what they will. Most of the time, statutorially-baseless arguments will do nothing but annoy the jury. On the other hand, on those occasions where a jury would find a particular truthful argument compelling, such a finding would imply its relevance.
The foreigner who doesn't understand will have a different defense, in that he can argue to not meet the state of mind element required to make the criminal offense.
The castle doctrine isn't used to make criminals out of the police. It's only function is to provide an excuse for using force to resist entry. Any legal action against the police would proceed separately, and again, the facts in the hypotheticals you propose would come into play there.
The second paragraph has to do with how a trial is structured. Sometimes a defendant is prevented from telling the jury about relevant law, too. The system viciously guards its power, but generally has a good faith conviction that the structure of the trial allows for all the relevant information to be presented to the jury.
The case that I have in mind about the law is a defendant being prevented from showing the jury the controlling US Supreme Court precedent, Miller v. US. He was allowed to present that to the judge, but the courts are corrupt on 2nd amendment law.
That will be your call, but you have to understand the consequences of what you are doing if you're wrong. If they are police and you assault them be prepared to have the book thrown at you, unless you can give a damn good reason why you suspected that.
I think a lot of this will boil down to the circumstances and your previous record myself. If you're like me and have never gotten so much as a speeding ticket, then suddenly two men claiming to be police start pushing their way into your home for some bogus reason your chances of getting a pass for breaking their noses will be a lot better than someone with a record.