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Sunday, June 12, 2011
YOUR GOVERNMENT AT WORK
Backlash begins for judges
who backed illegal entry
Lawmakers want court to fix ruling,
plan state-statute changes for remedy
Posted: June 12, 2011
12:00 am Eastern
By Bob Unruh
Indiana state Rep. Mike Young
A backlash has begun against an Indiana Supreme Court ruling that homeowners have no right to resist a police officer's illegal entry but can argue it later in court.
State lawmakers are seeking a change in the state statutes and asking the court to make the judges fix the problem themselves.
A constitutional expert contends the moves are needed, because the court's arguments essentially are the same as the idea that "someone can't use a firearm to protect himself from someone who is threatening to kill him."
A later argument over such use of a firearm might very well be of no help to the person who wanted to protect himself, the expert, Herb Titus of William J. Olson, P.C., Attorneys at Law, told WND today.
Constitutional Chaos: What Happens When the Government Breaks Its Own Laws (Paperback)
"He might be dead."
According to local reports when the ruling was released last month, the state Supreme Court concluded that "allowing resistance [to an illegal police entry] unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."
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The panel, in a 3-2 vote, said that people who are victimized by police entering their homes illegally must not resist but instead could pursue a complaint later in the court system.
The case originated with police officers who responded to a report of a domestic dispute outside of a home. When the officers wanted to follow the man into his home, he resisted, and they shot him with a Taser and arrested him.
"Although some state legislatures have abrogated the common law right to resist arrest, Indiana has not," explains a friend-of-the-court brief filed by dozens of state lawmakers. "The right to resist arrested in the streets is quite different from the right to resist unlawful entry into one's home – for arrest, investigation, or any other purpose."
The brief, asking the state Supreme Court to rehear the case, said, "The public policy of this state, as embodied in the 2006 legislation, has been to grant our citizens greater autonomy to protect themselves from unlawful incursions into their homes."
According to the brief, the state in 2006 specifically adopted a law that explains a person is justified in using "reasonable force, including deadly force, against another person: and does not have a duty to retreat; if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, cartilage, or occupied motor vehicle."
"Any rule that encourages 'immediate surrender' whenever a person hears the word 'police!' or sees a badge could expose citizens to a great risk of harm. … For example, a serial killer in Pennsylvania used a police disguise to gain entry into a home where he raped and strangled a woman, and men claiming to be narcotics agents in Alabama kicked in a door and stole money … after hitting the occupant on the head.
"These headlines need not be replicated in Indiana. Rather, granting rehearing is appropriate to narrow this court's holding and apprise our citizens that they retain the venerable right to reasonably resist unlawful entry into their homes by police."
State Sen. Mike Young, who played a key role in getting the 71 lawmakers together on the brief, also confirmed that he will craft legislation to respond to the court's ruling.
At the time, Young noted the judges "overturned a basic common law that dates back to the English Magna Carta nearly 800 years ago. This flies in the face of our 4th Amendment right in the U.S. Constitution, protecting us against unreasonable search and seizure."
"When someone enters your home illegally at 3 a.m., your first thought is not what court will have jurisdiction, but, rather, what do I need to do to protect my family," Young said.
"Few issues before this court have galvanized the public's attention and concern as much as the declaration in this case that the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law," Young said. "Rehearing is appropriate to reconsider that holding in light of Indiana's robust self-defense statute."
But Justice Steven David wrote for the court that if a police officer decides to enter a home – for any reason or no reason at all – a homeowner cannot do anything the stop him.
Even state Attorney General Greg Zoeller, who argued the winning side in the state Supreme Court case, endorsed the idea of a rehearing.
"In supporting a rehearing, the state will continue to argue that [the] convictions should be upheld, but on more narrow grounds. We contend that under the circumstances, the police entry of [the] residence was legal: The officers responding to the 911 call sought to avoid leaving the alleged victim with the defendant after a confrontation outside. So while there is no right to commit battery with police, I believe the individual has the right to shut the door, stand his ground and communicate with police without engaging in an altercation. In balancing the perils of domestic violence with respect to law enforcement, I will continue to advise our police clients to respect people's Fourth Amendment rights."
Titus told WND that the court's move is symptomatic of the moves in U.S. courts to weaken the principle of private property.
"We [recently] filed a brief in the U.S. Supreme Court in another case involving GPS searches," he said. "And in our brief we urged the court to return to the original meaning of the 4th Amendment, which is based on property as contrasted to privacy."
"The Indiana court openly stated that they were reversing something that has been in the common law for centuries. … A lot of people have forgotten why the amendment is in the Constitution. It was designed if you own your house, the property is a barrier to keep the government out."
When courts substitute "privacy" for "property," however, it can mean anything, he noted.
He explained that over history the government had to show a "superior property interest" before searches could happen. In the Indiana case, he said, the entry "completely disregards the sanctity of the home. It disregards the property interest that serves as a barrier to government intrusion."
He said while that is "divorced" from constitutional foundations, it is the argument judges use in current cases.
They act, he said, by the dictates of what they believe should happen.
"This comes as part of the evolution of law," he said. "They believe the law is changing to meet changes in society. The law becomes an instrument in the hands of the courts or the hands of some other government official to achieve whatever it is they want.
"They live in a world in which they presume that the rules governing them are mere constructs, instruments that a ruling class has decided to be what they want to happen, what they think. There aren't any fixed rules."
WND columnist Nat Henthoff, an authority on the First Amendment and Bill of Rights, said there are other recent cases in which the 4th Amendment has come under fire.
"On May 16, 2011, in these United States, eight justices, apparently unaware of the deep roots the Fourth Amendment has in our history, ruled in Kentucky v. King – as warned in the interpretation of the lone dissenter, Ruth Bader Ginsburg – to suspend the Fourth Amendment," he 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?"
He explained that Lexington, Ky., case involved police who suspected there was a drug operation in an apartment.
"They went to the wrong apartment. But outside that apartment, they smelled marijuana, knocked hard, announced who they were and at that point heard noises coming from inside the apartment. What could these sounds be caused by? Evidence being destroyed, the police believed, but without actual proof," he wrote.
"In view of the marijuana smell and what they suspected, they could have easily obtained a warrant. Judges are very accommodating in this context. But the police roared they were going in and knocked down the door," he explained.
The federal government also has been accused of violating the 4th Amendment's protections in its new procedures to take virtually nude body images of airline travelers, or subject them to physical pat-downs critics have likened to public sexual assaults.
There are a number of legal challenges continuing to the procedures.