In the law, there have been certain very specific places which no court, no judge, is bold enough to breech. The front door of a person’s home, his castle, was one such place. No more.
The Indiana Supreme Court, in a 3-2 decision, has taken the state of law since the King John’s signing of the Magna Carta in 1215 and decide that it no longer serves our “modern” world. In Barnes v. State, the court held that the sanctity of our homes is a thing of the past.
We believe . . . that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. E.g., Warner, supra, at 330 (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist); State v. Hobson, 577 N.W.2d 825, 835–36 (Wis. 1998) (citing the following modern developments: (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). 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— as evident by the facts of this instant case. E.g., Hobson, 577 N.W.2d at 836 (“But in arrest situations that are often ripe for rapid escalation, one‘s ‘measured‘ response may fast become excessive.”).
The case involved a domestic dispute, where the defendant was confronted by police outside his home. There was no basis to arrest him, any more than there is a basis to arrest a man any time he and his wife have an argument, and so the defendant went inside. He refused the police entry, and when they forced their way in, pushed an officer up against a wall. For that, he was charged with misdemeanor battery.
In defense to the charge, the defendant relied on his right to resist an illegal entry into his home, whether by police or anyone else. But the the entry was by police, officers of the state, made it of particular significance. This was the core evil against which the Fourth Amendment protects. Note the use of the past tense.
But this has now been declared archaic, a relic of a past age, of which modern man, and courts, no longer have need. The court says we have other, better, options than to resist: the exclusionary rule, internal police department review and disciplinary procedures and civil remedies. Perhaps this is a penumbra of the “new professionalism” we’ve heard so much about, and have yet to enjoy for ourselves.
The gist of the court’s ruling, however, is that they’re doing this for us, for the children, to safeguard us from violence. Resisting the police escalates violence, and enhances the likelihood that someone will be hurt. They just don’t want us to get hurt, and if the front door to our homes is the cost of our safety, then so be it. As the court tangentially notes, it’s not like law prohibiting police entry actually stops the police from doing as they please, so better to eliminate the law than mandate police adherence.
There is no line more fundamental than that running across our threshold. Courts have been trying to erase if for a long time, bit by bit. The Indiana Supreme Court seizes upon these “exceptions” to conclude that the fundamental rule has been eroding for so long as to make this final step, the erasure of the rule altogether, merely the obvious last slide down the slope.
Further, we note that a warrant is not necessary for every entry into a home. For example, officers may enter the home if they are in “hot pursuit” of the arrestee or if exigent circumstances justified the entry. E.g., United States v. Santana, 427 U.S. 38, 42–43 (1976) (holding that retreat into a defendant‘s house could not thwart an otherwise proper arrest made in the course of a ―hot pursuit‖); Holder v. State, 847 N.E.2d 930, 938 (Ind. 2006) (“Possible imminent destruction of evidence is one exigent circumstance that may justify a warrantless entry into a home if the fear on the part of the police that the evidence was immediately about to be destroyed is objectively reasonable.”). Even with a warrant, officers may have acted in good faith in entering a home, only to find later that their entry was in error. E.g., Arizona v. Evans, 514 U.S. 1, 11 (1994); United States v. Leon, 468 U.S. 897, 922–25 (1984). In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment.
While it’s easy to argue slippery slope in opposition to the creation of any particular exception to a rule, that doesn’t mean it isn’t accurate and doesn’t happen. This is the proof.
The dissent, by definition, disagrees.
Defiance will no longer be tolerated in Indiana, for our own safety and because we didn’t challenge the small slides down the hill along the way. Now that we’re at the bottom, should we be surprised?[T]he common law rule supporting a citizen‘s right to resist unlawful entry into her home rests on . . . 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.
In Miller v. United States, 357 U.S. 301, 313–14 (1958) the United States Supreme Court held that it was unlawful to arrest the defendant on criminal charges when a warrantless arrest was conducted by police officers breaking and entering the defendant‘s apartment without expressly announcing the purpose of their presence or demanding admission. In recounting the historical perspective for its holding the Court quoted eighteenth century remarks attributed to William Pitt, Earl of Chatham, on the occasion of a debate in Parliament:
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!
Id. at 307. The same is no less true today and applies equally to forces of the State.
H/T Walter Olson and Orin Kerr
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As usual, yours is the best analysis I’ve read on this disturbingly inevitable case. Orin Kerr takes the Ivory Tower climb and asserts it’s not a 4th Am. case at all, but a states’ rights sort of decision in defining their own criminal statutes.
But the 4th Amendment was written and adopted in the context of the long-standing common law cited both by the Mitch Daniels-appointed Chief Justice and by the dissent. All is OK with the 4th Amendment because the criminally convicted defendant could have (in theory only) initiated a civil suit against the cops. Talk about a right without a remedy.
For those of us interested in what really happens on the ground and not in SCOTUSville, it is of course a 4th Am. case. The gut reaction of even the readers of the Northwest Indiana newspaper that first reported the ruling reflects this as well.
I’m surprised Orin didn’t recognize that the poor defendant should have received a good faith exemption to have allowed his jury instruction on the basis his actions were indeed legal under existing law.
I also really liked the part of the opinion that mentioned the defendant’s “adverse reaction” to being tased – as if it were one of those rare side effects to a prescription drug that certain patients may experience.
It’s rationalizing decisions like this that explain how we find ourselves at the bottom of the slope, exception after exception until there’s nothing left. This was a bright line case, and now the line is gone. There is no excuse for this decision.
Three Indiana Supreme Court Justices need to be impeached… Immediately.
Thank you for your deep and informative comment. It will no doubt be meaningful to so many.
I’m not normally one to throw around the phrase “activist judges,” but I can’t help but read this part of the opinion and wonder:
It sounds like the Indiana Supreme Court just wanted to be like all the other kids.
First, there’s a difference between an “arrestee,” meaning the guy on the street who is baselessly acosted by a cop and had a right to resist an unlawful arrest, and the guy who slams his door shut in the face of a cop without a warrant. There’s a stronger argument that the guy who resists an arrest, which later turns out to be unlawful, is going to hurt the cop or be hurt by the cop, all based on a post hoc determination. There is no bright line test to determine when it’s good to punch a cop in the face and when it’s not that can be used by the guy on the street at the moment of confrontation.
But second, this was part of the slippery slope that produced this nightmare, where the historical right to not be unlawfully arrested, and resist an unlawful arrest, was given away. We see some facially bad arrests, the ones where it’s clear that the only “crime” is contempt of cop, and where the arrestee is given a damn good tuning up for his offense. Does a citizen have to lie there an endure a beating, a tasing, a few good kicks in the face, or even a bullet in the head? Do we not have the right to protect ourselves from being harmed, even killed, by the angry cop? Is it better to be a law-abiding citizen and dead?
While the notion that there are “alternative remedies” is a joke played by courts on foolish citizens, is anyone satisfied with the idea that their estate will win a big §1983 judgment, more than sufficient to cover the cost of their funeral? I think not.
I’ve been trying since Friday to come up with a way to describe this opinion. The best I’ve been able to come up with (at least, the best that’s printable where women and children might read it) is “breathtaking.”
It would appear that the chief justice responsible for this ruling is coming up for a confirmation election. It’s not quite the same as impeachment, but he could well be removed from office.
[Edit. Note: Link deleted as per rules.]
Today, I am very happy that I am not a Hoosier. That I would physically resist an unlawful entry into my home is a constant, it’s just how my values are wired. How the state reacts to said resistance, especially when the perp happens to be an officer of the state, is the only variable. Does such self determination make me an anarchist? Maybe, if I had money for a lawyer, it’d be different…
Compare the Indiana Supreme Court’s majority opinion in this case to (one of my own research interests) the Florida Supreme Court’s majority opinion in the 1921 case Tillman v. State (81 Fla. 558). Black man in the Jim Crow South walking down a dark country road with a package under his arm. White sheriff’s deputy, not in uniform, sees him, thinks the package must be illegal liquor, runs over in the dark and tries to take it away. Black man shoots him (through the hat, just missing his head). Trial court jury convicts, Supreme Court overturns conviction on the grounds that OF COURSE everyone has a right to resist an attempt by a law enforcement officer “to take from him by force, without warrant, property in his possession.”
Or look at Presley v. State (75 Fla. 434), from 1918. Black man kills a white cop, is convicted. Supreme Court — Jim Crow Supreme Court, packed with Southern Democrats — says that, yeah, no shit, everybody obviously gets to resist an unlawful arrest.
We’ve come a long, long way.
I think that the court also overlooked the probability that this decision will give criminals an large incentive to impersonate police officers.
If one must admit police to one’s home upon demand, then one must also admit anyone who successfully pretends to be police as well. One probably wouldn’t be killed in such a scenario with a police man. The probability goes up substantially when one admits an armed criminal pretending to be a police man ro one’s home.
Unfortunately, that’s been going on for a very long time already.
Does the decision qualify the type of resistance? Does the act of say closing the door constitute resistance to the search? If so, would that not be an obstruction charge which would then make the persuant search legal ‘cuz they were in ‘hot pursuit of a suspected felon’ followed by plain-sighting the hell out of every drawer and cupboard in one’s home?
I’m sure if they’re standing in the doorway, or have a foot in the door, then closing the door on them would most certainly be resistance. They could be horribly hurt by a slowly closing door, and would justify in meeting such deadly force with force of their own.
How about “ass-backwards” or breech?
Breathtaking is a good word for this but terrifying is better. We now have the ability to call someone a terrorist and remove their right to habeas corpus (and criminalize amicus briefs on their behalf) coupled with the ability in Indiana to enter a house without a warrant with NO EXTENUATING CIRCUMSTANCE beside suspicion.
So a cop can enter a house, find nothing, face the marginal probability of a successful civil suit and decide its worthwhile to call the guy a terrorist.
Granted, that’s a big risk to his job if anyone cares to check into things but all the guy needs is some chemicals under the sink to give the cop plausible denial AND WHEN DOES THE DEFENDANT GET HEARD? Good question, he apparently has no right to be heard.
This is a paranoid view. The death of the 4th amendment for Hoosiers is bad enough without going here but we’ve slid to a point where that level of power is already within the hands of law enforcement today if ANYONE was inclined to abuse it.
Bad.
I’m afraid to call the cops if my dog is lost for fear it will escalate into something violent. New professionalism, leave the cops out of it at all possible costs!
Police officers have been impersonating criminals for so long, it’s hard to tell the difference anyway. I doubt the criminals are any more dangerous, either. Maybe less obnoxious.
That’s the old joke of the guy whose wife’s credit card was stolen, but chose not to report it as the thief was spending less than she did.
Moral of the ruling: Build a front door that cannot be kicked in. This is standard fare for those already acquainted with the cops. Americans must now build homes secure from the police, the rich have been doing it for decades, the middle class is just now getting a clue, and the poor, well, freedom’s just another word for nothin’ left to lose.