NRA-Backed Law Spells Out When Indianans May Open Fire on Police

June 5 (Bloomberg) -- Every time police Sergeant Joseph Hubbard stops a speeder or serves a search warrant, he says he worries suspects assume they can open fire -- without breaking the law.

Hubbard, a 17-year veteran of the police department in Jeffersonville, Indiana, says his apprehension stems from a state law approved this year that allows residents to use deadly force in response to the "unlawful intrusion" by a "public servant" to protect themselves and others, or their property.

"If I pull over a car and I walk up to it and the guy shoots me, he's going to say, 'Well, he was trying to illegally enter my property,'" said Hubbard, 40, who is president of Jeffersonville Fraternal Order of Police Lodge 100. "Somebody is going get away with killing a cop because of this law."

Indiana is the first U.S. state to specifically allow force against officers, according to the Association of Prosecuting Attorneys in Washington, which represents and supports prosecutors. The National Rifle Association pushed for the law, saying an unfavorable court decision made the need clear and that it would allow homeowners to defend themselves during a violent, unjustified attack. Police lobbied against it.

This appears to be a direct response to a long-standing pattern of abuses on the part of law enforcement. I guess it's too much to ask that LEOs follow the law.

A shame, really, since most do. But once again we see that "a few bad apples spoil the whole bunch".

Well, no. Since 1893, Indiana had a section of state law [*Indiana Code*] based on a state supreme court decision that made it clear that Indiana citizens had the right to resist unlawful force by a police officer during false arrest, as when the officer is committing Official misconduct [any felony or misdemeanor crime commited during the performance of a public servant's duty] or when the arresting officer is drunk or under the influence of narcotic drugs.

About 15 years ago, the *pro-law enforcement* crowd got the state statute based on the Plummer v State decision tossed out, leading to the present abuses.

Plummer v. State, 135 Ind. 308, 34 N.E. 968 Ind. 1893

Your Right of Defense Against Unlawful Arrest

“Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”

“An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.

“When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.

“These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence.” Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.

“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).

“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).

“One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).

“Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that ‘a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’ There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all ... it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.

As for grounds for arrest: “The carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act of itself, lead to a breach of the peace.” (Wharton’s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy v. Lashley, 5 W. Va. 628, 41 S.E. 197)

If a SWAT team breaks down your door in the middle of the night, I doubt you’d have time to open fire let alone even get to your gun before they invade your bedroom.

That may be true if it's a real "Special Weapons And Tactics" team. On the other hand, if it's a "Swat Wannabee And Thug" team, resistance may sometimes enhance one's chance of survival. For example, after Ryan Frederick shot an AR-15 wielding robber who was with a team battering their way through his front door, the robbers realized they should start acting like cops and identify themselves as such (previously they had, by their own admission, deliberately parked all marked police vehicles out of sight of Mr. Frederick's house, and made a verbal "announcement" that was so feeble that some team members, who were listening for it as a cue to invade the garage, didn't hear it). Once the police identified themselves, Mr. Frederick made clear that he would cooperate with lawful police action and he was taken into custody. Had he not shot the robbers, though, it seems likely that one of the robbers with an AR-15 might have shot him on sight.

(BTW, I think Mr. Frederick's lawyer decided to punt for a 'manslaughter' conviction, arguing that Mr. Frederick really had no way of knowing who he was shooting at. I would have thought a better argument would have been that while Mr. Frederick didn't know the precise identity of the people breaking into his home, he had an objectively reasonable beliefs, which were also factually correct, that (1) his home was being broken into, loudly, by people who knew he was home; (2) such conduct is very rare by invaders who do not intend to subdue the occupants of the dwelling they're invading; (3) the invaders did intend to subdue him or worse, and the only way to prevent that would be to shoot them before they could enter more completely; (4) the invaders were not acting like police officers who were reasonably serving a warrant [note that "unreasonable" warrant service is, by 4th Amendment definition, illegitimate].

If I were writing such a statute, it would read something like this:

A person who forcibly and unlawfully breaks into the dwelling of another, for the purpose of assaulting any person or persons who may be therein is a robber.
Persons who are in the employ of police agencies, and/or wear the uniforms thereof, shall not be exempt from such definition.
Unconstitutional actions are, by definition, unlawful. Likewise, unlawful acts can by definition form no part of a government agent's legitimate duties.
Someone who legitimately occupies a dwelling shall be entitled to use deadly force against people who are, in fact, robbers, without having to identify any basis for believing the invaders to be such.
Someone who legitimately occupies a dwelling shall also be entitled to use deadly force against people whom he reasonably believes to be robbers, but may be called upon to demonstrate that his belief was objectively reasonable.
Persons (other than robbers) who break into dwellings for any reason have a duty to demonstrate that they are not robbers. Any person who fails in such duty shall bear full responsibility for any harm resulting from such failure.

When cops act like cops performing legitimate duties, they should be regarded as such. But if they act like robbers, they should be treated like robbers.

Your example, was it an incident with actual law enforcement? I’m guessing yes, but I don’t know that I have all of the facts to make that assessment.

My examples are specific to actual law enforcement officers, not “wannabe” cops (i.e. community security or criminals in fake uniforms). Your chances of survival in an incident involving actual trained cops or, worst case, military-trained units, are pretty slim, esp. if you open fire on them.

I have dogs who are diligent at barking at the smallest of noises, and I would unload a magazine of shot shells at an intruder who shot any of them, regardless of the verity of their break-in.

Cops should have to think really hard before plowing down a door on a search warrant, and this law makes that happen. Break down the wrong door, neglect to surveil the home prior to a raid, or knock down the wrong door due to complete incompetence is NOT a permissible reason to ventilate a homeowner or their pets and law enforcement should absolutely be held to account for their behavior, even if they all have matching stories.

The overarching point is that the average citizen does not have recourse against a pack of SWAT meatheads whether by firepower or in a court of law. Law enforcement should not be immune to prosecution from shooting someone’s pet all the way up to an illegal search.

The “Law and Order” mentality of skirting the gray areas of the law makes me sick. Our Founders envisioned “a nation of laws, not men,” and these men get away with murder quite a bit more than I like.

Your example, was it an incident with actual law enforcement? ... My examples are specific to actual law enforcement officers, not “wannabe” cops

I'm not talking about private security officers, but rather persons employed as law-enforcement officers who think that if they equipping themselves with fancy gear and smash into people's homes, they'll be a "SWAT team". Such behavior was demonstrated by the gang of BATF agents who smashed into Mount Carmel Center in Waco Texas (1992). It's fairly common in some areas for groups of "SWAT Wannabes And Thugs" smash into the homes of supposedly-dangerous people, using reckless bully tactics which would get them killed if their targets were actually dangerous. Ryan Frederick was a victim of such robbers; Cory Maye was another, though the police conduct in his case was not quite so outrageous (the death of the officer invading Mr. Maye's home I would regard as unfortunate but justifiable; the only unfortunate thing about the death of the officer who was trying to break into Mr. Frederick's home was the state's blaming Mr. Frederick for the death, rather than prosecuting decedent's accomplices for capital murder).

One of the major causes of that, I think, is a widespread belief that court precedents have some kind of legal authority in matters not involving the original litigants. If a court rules that police acted reasonably in some particular case where they knocked on a door, waited five seconds, and bashed their way in, such a ruling will be interpreted as a rule saying that cop's behavior should be regarded as "reasonable" if the cop makes some effort to knock on a door (not necessarily audibly) and waits something resembling five seconds before forcing entry.

A more proper approach would be to recognize that any conduct which a jury would regard as "unreasonable", is unreasonable. While it is right and proper to allow defendants to block the admission of evidence gathered in patently-unreasonable searches, that should not be the limit of defendants' Fourth-Amendment protections. Defendants should also be able have questions of "reasonableness" put before their jury. In many cases, decisions regarding what is "reasonable" or "unreasonable" involve factual matters (such as witness credibility or perceptions of judgment) rather than legal ones; as such, the state cannot really honor a person's right to jury trial without allowing the jury to consider such factual issues.

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