There’s an undeniable element of Schadenfreude in the words of Indiana Fraternal Order of Police president, Tim Downs:
It’s just a recipe for disaster,” said Downs, chief of the Lake County police in northwest Indiana. “It just puts a bounty on our heads.”
Of course, Downs worries only for his own, his cops. And that’s the problem. Via the Texas Tornado, Mark Bennett, Indiana has “undone” the ruling of its Supreme Court in Barnes v. State by enacting a law that authorizes a person to use force to defend his home against unlawful intrusion by a public servant.
(i) A person is justified in using reasonable force against a public servant if the person reasonably believes the force is necessary to:
(1) protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force;
(2) prevent or terminate the public servant’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle; or
(3) prevent or terminate the public servant’s unlawful trespass on or criminal interference with property lawfully in the person’s possession, lawfully in possession of a member of the person’s immediate family, or belonging to a person whose property the person has authority to protect.
The expanse of this law is broad, covering not just entry into a home, but trespass on the curtilage (the lawned area surrounding a home) and even an occupied motor vehicle. It calls upon a person to exercise a degree of discretion to distinguish between a lawful entry or attack and an unlawful one. This isn’t an easy thing to do.
Tim Down is afraid, and may well have damn good reason to be afraid. Then again, so should everyone else in Indiana. As much as the right of a person to defend himself against unlawful force should be a core principle, it also presents a very dangerous problem. A cop afraid is a cop who shoots first. His fear may be irrational and baseless, though you can bet he’ll come up with a reason for firing before the ambulance arrives, but the First Rule of Policing can never be ignored. If someone is going to die, you can bet the cop prefers it be you.
Behind this law is the belief that no one, public servants included, have the right or authority to break the law and unlawfully violate your rights. It’s a beautiful concept, and one that every American, cops included, should hold dear. There is no freedom if it can be wrongfully taken without recourse.
While this seems at first blush to level the playing field, to give police a good reason to pause before engaging in unlawful conduct such as occurred in Barnes, it’s never quite a fair fight. First, the police will still be the ones to initiate action, meaning they can do so, plan it, execute it, in a way that will invariably favor them and their safety at the expense of the citizen.
Second, the cops have weapons, and more of them, that you don’t have. Whether tanks, drones or merely a few dozen automatic assault rifles, they are nothing if not well armed. What are the chances a guy, half asleep, is well-positioned to fend off a SWAT team? He may get one of two, but his chances of survival are slim to none. Once bullets start flying, the police aren’t going to stop until someone goes down.
Third, the police officer who stops your car, whether you believe rightfully or wrongfully, is coming at you with a serious concern that might not take the stop with equanimity. He’s going to have his hand on his gun, and he’s going to be ready to use it. Reach for your registration and it’s a furtive gesture. Boom. Don’t expect the cop to hesitate, and don’t expect the legal system to blame him for it.
If this law restores some degree of balance, appropriate concern without undue fear, then it may well accomplish its goal of telling the Government that it is not entitled to illegally storm a home simply because it can. Certainly the courts are incapable of stopping this from happening, as if the police had any concern about what a court might say. That something more was needed to remind the police that they don’t own us is beyond question.
Yet, this may be a recipe for disaster. Not the disaster that Downs fears, but the disaster of cops shooting people first because they fear people exercising their lawful right to resist with force. As I’m not from Texas, I don’t want to see anyone die. Not cop. Not citizen. No one.
Perhaps the tension this creates will make the police think hard about engaging in unlawful conduct, and potentially breaking the First Rule of Policing. Perhaps this will produce a blood bath, with the citizen invariably on the south side of a tank rolling north. The simple answer is for cops to stop engaging in unlawful conduct, but then, the police never seem to grasp why they aren’t entitled to do whatever they please.
Regardless of who’s to blame, let’s hope that this law serves its purpose and doesn’t become an excuse for roadside murders. Of anybody.
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Yes, the potential (and probable) gap between the theoretical and the actual is quite large for this provision. It’s hard to tell exactly how it will affect the dynamics in real life.
Unfortunately it definitely lends itself to the good old, “you’re right, but dead” outcome.
From what this citizen without a JD can see, the law merely restores the common law right unlawfully removed by the state supreme court.
Actually, they didn’t quite do that, as there is now a requirement for the homeowner to differentiate between a freelance criminal and one with state imprimatur.
When it was a matter of common law, it wasn’t at the forefront of anyone’s consciousness, cop or not. It may have been generally lawful to resist with force, but few people thought about doing so and few cops were afraid they would.
Now that it’s been highlighted by this new law, the expectations and fears are altered, which is where it creates a danger that may have technically existed before, but was under the radar.
I agree the situation has been altered to make it more dangerous for both the citizen and police. However one of the reason it was dangerous in the first place was the surprise attack to prevent the destruction of evidence.
True, but dead men don’t usually worry too much about why.
Don’t they have something similar in Texas? I took a CHL class in Texas about 10 or 12 years ago, and I vaguely remember the instructor saying something to the effect that — in theory!! — a citizen had the right to use deadly force against a police officer if (and only if) the officer initiated extreme violence against the citizen without provocation.
Of course he also warned us very emphatically that exercising that right was a really good way to end up dead or doing life in prison.
Sounds likely, though I’m unfamiliar with the laws of foreign jurisdictions like the Republic of Texas.
This is extraordinarily interesting for me. I just submitted a law review article a few weeks ago in which I listed the abrogation of the common law right to resist an unlawful arrest as one of the reasons that Scalia’s “New Professionalism” Thesis from Hudson v. Michigan was without merit (impunity = abuse of power, who would’ve thought?).
In the article, I readily conceded the point that Scott makes above, viz., that incidents of violence and/or death will increase as a result of reifying the right to resist). But I based my counter-argument largely on something else Scott has mentioned in the past, specifically with regards to the Crossland case from the D.C. Circuit: there’s no principled basis on which to distinguish a purely unlawful arrest from a lawful arrest that’s merely accompanied by unlawful conduct. It’s easy for us to imagine a situation in which a police officer lawfully arrests someone, then uses the coercive circumstances of the arrest to force the arrestee into a non-consensual sexual encounter. With the common law right abrogated, a person has a legal duty not to resist their own rapist when he (or she) wears a badge. And in jurisdictions like D.C., you’ll probably end up a convicted felon if you do.
Conceding the possibility of increased injury and death, it still seems unconscionable to me to have a legal regime in which a police officer can arrest someone, sexually assault them, and then charge them with a crime if they resist. A learned judge would of course tell us that the law imposes no such duty, because the rape is a separate and distinct act from the arrest. But that’s as laughable a legal fiction as the reliability of drug-sniffing dogs.
I’ll be watching Indiana closely to see if violent incidents between police and private citizens actually increase. We’ll see if my thesis goes down in flames.
If it turns out that there is an upswing in violence because of this, it won’t disprove your thesis. It will be reflection of police using this effort to show who’s boss by pre-empting the potential harm and killing first. It will be manipulative rather than reactive. If it happens, people will die so the police can prove their point.
I very much like the idea that at least some level of government is trying to curb police abuse, but this is a horribly stupid way to go about it. I think it will lead to deaths, and then very quickly to repeal, mooting the point of passing the law in the first place. Rules requiring independent investigation, tougher sanctions,and raising the bar police have to meet before being granted immunity in civil suits would be much more prudent. Another approach would be to mandate that any police officer found responsible under a 1983 action would face criminal charges as well, with a special prosecutor who doesn’t deal with police on a day to day basis responsible for presenting the case to a grand jury and trial. The only way to get better police accountability is to remove or at least greatly weaken the Blue Wall.