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Indiana court strips citizens of right to resist unlawful police entry

By Stephen C. Webster
Monday, May 16, 2011 14:06 EDT
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A little-noticed Indiana Supreme Court decision late last week overturned long-standing precedent and stripped citizens of the right to resist unlawful police entry to their homes, in a move dissenting justices called “breathtaking” and “unnecessarily broad.”

The ruling, which came on the appeal of a case in which police subdued a man who refused to allow them entry to an apartment following a report of domestic violence, strikes to the heart of the Constitution’s Fourth Amendment, which protects citizens from unlawful search and seizure.

It effectively means that officers may enter any residence without warrant, probable cause or permission of the owner, leaving citizens’ only legal recourse against such intrusions in the hands of police review boards or district courts.

“[We] hold that the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law,” the court’s majority wrote in it’s verdict on Richard L. Barnes v. Indiana.

The decision, which came down from a split vote of 3-2, drew sharp dissents from Justices Brent E. Dickson and Robert D. Rucker.

“In my view, the wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad,” Dickson wrote. “[...] It would have been preferable, in my view, for the Court today to have taken a more narrow approach, construing the right to resist unlawful police entry, which extends only to reasonable resistance, by deeming unreasonable a person’s resistance to police entry in the course of investigating reports of domestic violence.”

“In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations,” Rucker added. “There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.”

In the case, officers were responding to a report of domestic violence. The suspect was confronted by officers outside his residence and he became belligerant, shouting at the police, who then threatened to arrest him for disorderly conduct.

Reacting to officers, the man returned to his apartment, but when police followed he blocked their path and refused to permit the police entry. When they insisted upon entering, he physically impeded officers and a scuffle ensued.

The man was ultimately charged with battery on a police officer, resisting law enforcement, disorderly conduct and interfering with the reporting of a crime.

In his appeal, defense attorneys suggested that his first jury had not been instructed of the defendant’s right to resist unlawful entry by police — a cornerstone of the modern legal system that goes all the way back to the Magna Carta. The defense insisted everything following the reputed unlawful entry by police was the result of an illegal search and that officers had neither a warrant nor probable cause to enter.

The case ultimately reached the Indiana Supreme Court, which ruled last week that current “public policy” is not conducive to resisting entry because civil protections have arisen to mitigate the threats of pre-industrial prison life — threats like indefinite detention, violence or disease from unclean, overcrowded facilities.

The court reasoned that since those things are no longer of concern (even though they are), Indiana should not permit citizens to resist unlawful police entry, which they saw as having the potential to cause an escalation of violence toward officers.

They also suggested that when the laws entered the English legal lexicon, most enforcement was carried out by individual citizens, making the allowance further irrelevant today.

“The officers cannot properly assess the complaint and the dangers to those threatened without some limited access to the involved parties,” the court’s majority opinion reads. “It is unrealistic to expect officers to wait for threats to escalate and for violence to become imminent before intervening. Here, the officers acted reasonably under the totality of the circumstances.”

The court’s full decision was available online (PDF).

Image credit: Flickr commons.

Stephen C. Webster
Stephen C. Webster
Stephen C. Webster is the senior editor of Raw Story, and is based out of Austin, Texas. He previously worked as the associate editor of The Lone Star Iconoclast in Crawford, Texas, where he covered state politics and the peace movement’s resurgence at the start of the Iraq war. Webster has also contributed to publications such as True/Slant, Austin Monthly, The Dallas Business Journal, The Dallas Morning News, Fort Worth Weekly, The News Connection and others. Follow him on Twitter at @StephenCWebster.
 
 
 
 
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