I find this case to be a warning shot across the bow of those hold-outs who believe this is a government of, by, and for the People, and that political action will remedy the no-longer stealthy encroachment upon natural, unalienable rights. No longer does the State veil its threats in craftily worded court opinions, but rather proudly raise the flag of totalitarianism in laying claim to one of the most fundamental of rights, that of self-defense. I expound upon the application of this right and previous courts recognizing such in this article. The Indiana Supreme Court also references one seminal case, Bad Elk v. United States.
In that case, the court said,
“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.”
However, the Indiana Supreme Court goes on to overturn this antiquated, common law right in referring to the Model Penal Code, The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942). What people fail to realize is, that under the Common Law, it was recognized that the individual was in full possession of his liberties by way of natural, unalienable rights and the protections guaranteed by the Constitution. Nowadays, courts circumvent long-held beliefs in the supremacy of individual liberty in favor of public policy. Everyone is essentially considered to be suspected of something, and when felonies were the crime of concern, the bar has been lowered to accommodate misdemeanors as well. Everyone is considered to be potentially violent and in violation of some law. Police are afforded carte blanche when it comes to inspecting, questioning, detaining, arresting, and even killing people. The Indiana Supreme Court said,
“The Model Penal Code eliminated the right on two grounds: ―(1) the development of alternate remedies for an aggrieved arrestee, and (2) the use of force by the arrestee was likely to result in greater injury to the person without preventing the arrest.‖ Hemmens & Levin, supra, at 23. In response to this criticism, a majority of states have abolishedthe right via statutes in the 1940s and judicial opinions in the 1960s.
What are the “alternate remedies for aggrieved arrestees” the court favors in opposition to the common law right to resist arrest? Under the common law right, the court supports its previous recognition of the right based on the then-perils facing the arrestee such as indefinite detention, lack of bail, disease-infested prisons, and physical torture. This is to say that when faced with such possibilities, an individual had the right to resist unlawful arrest because the outcome from such resistance was less and considered more reasonable than the perils awaiting him if he should submit. Reading this another way, the courts were saying that law enforcement was known to, at times, treat arrested persons in ways inconsistent with natural, unalienable rights and Constitutional protections. The “alternate remedies” to which the court now speaks, referring to them as “modern developments’, include, “(1) bail, (2) prompt arraignment and determination of probable cause, (3)the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies).” This is to say that, presuming you survive the arrest, you have more civil and peaceable remedies at your disposal which will still subject you to the arbitrary, corrupt, and protracted administration of so-called “justice”. If you are the victim of an unlawful arrest you can post bail, challenge the probable cause for the intrusion, which has essentially been negated by this ruling because probable cause exists only in justifying the grounds for an arrest, exclude any illegally obtained evidence and petition the gangsters who violated your rights for redress and pursue civil remedies of which the legislatures have extended limited immunity. Sounds like a fair trade-off to me.
There are two Justices who voiced their dissent with the majority ruling, and you can read the entire court opinion here. They likewise mention the overbreadth of this ruling which essentially means the police need no reason at all for entering your home. One thing that distinguishes this case from others where the court affirmed the Common Law right to resist unlawful arrest is that this was a “domestic violence” case where a call to 911 was made. The Court did not mention this as a specific and limited application of their overbroad abrogation of the common law, but briefly mention it early in the ruling. Domestic violence, or not, the Court essentially buries centuries of jurisprudence which recognizes the right of an individual to defend themselves from unlawful State action, especially that which violates the sanctity of their home.
I wonder what Justice, Steven David, would do when faced with the specter of an unlawful arrest; especially on in which his very life is threatened by police. For example, let’s say that some private individuals purchase uniforms that resemble police uniforms. Let ‘s say these individuals just so happen to be particularly exasperated with the despotic ruling by Justice David and, as a result, exhibit aggressive, violent, and irrational behavior when acting out this scenario; much like a common police officer would exhibit. Let’s say these angry, violent, police-imposters barge into Justice David’s home with guns drawn and barking orders at the residents, maybe including David’s wife, children, and elderly parents. Let’s assume that Justice David is a gunowner and has within his reach access to a firearm. The imposters order everyone to the ground where they go on to verbally abuse and physically assault recalcitrant suspects. Justice David tries to verbally engage the imposters to determine the reason for the intrusion. Some of David’s family appear to resist out of fear for their lives. The imposters kick and pistol whip them for their insolence. They shout to the suspects, “Shut up! Justice David has affirmed our right to violate your right to be secure in your own home! We are blameless!” During the confrontation, one of the imposters shoots and kills David’s children and wife as well as seriously wounding David himself. They then apologize for the intrusion, citing a mistaken address provided to them by a drug snitch before leaving the premises.
Would David gather his fallen family members and tsk-tsk-tsk their demise as a justifiable exercise of State action? He would be none the wiser that the perpetrators were not police, as they were disguised as police. Yet, in David’s twisted mind he would believe their actions to be in conformance with his psychotic ruling. Would David lick his wounds and then march down to the county courthouse to file a civil suit to recover monetary damages to replace the lost affection and companionship of his fallen family members? Would he look at the hole in his leg and reflect back on his ruling, thinking, ” ’tis just and right.”? One must wonder what such a man would do when faced with the real-world application of his holding. I guess David, being the good Statist that he is, would accept the death of his family as reasonable, since their recourse is to quietly compost into worm food and apply for bail.
Of course, God forbid any such thing would happen, but then again, God forbid the State would do the same to any other. Yet, that very thing happens all too frequently. In that case, I guess there is no reason to feel any differently towards Justice David’s loss than that of any other; and seeing David has no consideration for the possible horrors facing others who take exception with David’s opinion, I can only speculate that David would believe his family “deserved it”. Maybe Justice David has something to think about, and maybe something to fear, as well. What follows is the text of the opinion. This message brought to you by Bob’s Costume Rental, 123 Main Street, Indianapolis, Indiana.
INDIANAPOLIS | Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.
In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry.
“We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” David said. “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”
David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.
The court’s decision stems from a Vanderburgh County case in which police were called to investigate a husband and wife arguing outside their apartment.
When the couple went back inside their apartment, the husband told police they were not needed and blocked the doorway so they could not enter. When an officer entered anyway, the husband shoved the officer against a wall. A second officer then used a stun gun on the husband and arrested him.
Professor Ivan Bodensteiner, of Valparaiso University School of Law, said the court’s decision is consistent with the idea of preventing violence.
“It’s not surprising that they would say there’s no right to beat the hell out of the officer,” Bodensteiner said. “(The court is saying) we would rather opt on the side of saying if the police act wrongfully in entering your house your remedy is under law, to bring a civil action against the officer.”
Justice Robert Rucker, a Gary native, and Justice Brent Dickson, a Hobart native, dissented from the ruling, saying the court’s decision runs afoul of the Fourth Amendment of the U.S. Constitution.
“In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally — that is, without the necessity of a warrant, consent or exigent circumstances,” Rucker said. “I disagree.”
Rucker and Dickson suggested if the court had limited its permission for police entry to domestic violence situations they would have supported the ruling.
But Dickson said, “The wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad.”
This is the second major Indiana Supreme Court ruling this week involving police entry into a home.
On Tuesday, the court said police serving a warrant may enter a home without knocking if officers decide circumstances justify it. Prior to that ruling, police serving a warrant would have to obtain a judge’s permission to enter without knocking.