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Friday, May 13, 2011

Ind. Decisions - More "Court: No right to resist illegal cop entry into home"

Yesterday's 3-2 Supreme Court decision in Richard L. Barnes v. State of Indiana (ILB summary here) is the subject of a blog post today by Dan Miller of the PJ Tattler, headed "Indiana Suprerme Court issues death warrant for Fourth Amendment." Here is how the well-worth reading in full post concludes:

Appellate courts generally limit their legal analyses to the facts of the case before them, for good reason. Failure to do so not only results in otherwise unnecessary future litigation, it also changes the law for no valid reason. The creation of new law is the proper function of legislatures, not courts. Here, however, what the court did went well beyond what even the Indiana Legislature could properly have done.

Quite properly, Justice Dickson stated in a dissent, “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.” Justice Rucker also dissented, despite his belief that the right to resist an unlawful police entry is passe. He dissented because

the common law rule supporting a citizen’s right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the United States Constitution. Indeed, ―the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Payton v. New York, 445 U.S. 573, 585 (1980). 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. 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.
Under the court’s quite unnecessary holding that “there is no right to reasonably resist unlawful entry by police officers (emphasis added),” there would be no right to resist even a patently unlawful police intrusion into one’s home to force payment of a bribe, to steal one’s silverware or for other grossly illegal purposes. Nor would there even be a right to have a jury decide whether that’s what happened. Far fetched? Sure. Are there bad cops? Sure, again. This holding gives them great opportunities.

This case may not get to the Supreme Court of the United States; that requires time and money. It should get there because it purports to abrogate — in Indiana — prior Supreme Court rulings on the Fourth Amendment and because cases embodying bad law tend to breed and multiply. They seem to enjoy higher fertility rates than do cases embodying good law.

Posted by Marcia Oddi on May 13, 2011 03:19 PM
Posted to Ind. Sup.Ct. Decisions