Courts Hand Down
Troubling Rulings
Gary Gerard,
dumbhoosier.com
There were a couple of troubling rulings handed down this
month – one
by the U.S. Supreme Court and another by the Indiana Supreme
Court.
Both involved police entry into a citizen’s home. And both
render
meaningless a verse from the epic Grateful Dead song
“Truckin.”
Sittin’ and starin’
out of the hotel window.
Got a tip they’re gonna
kick the door in again.
I’d like to get some sleep
before I travel.
But if you got a warrant
I guess you’re gonna come in.
Now, it seems, they can come in warrant or not and we’ll
just sort out
any rights you may or may not have afterward.
The rulings also put a chill on the Fourth Amendment to the
U.S.
Constitution.
“The right of the people to be secure in their persons,
houses, papers,
and effects, against unreasonable searches and seizures,
shall not be
violated, and no Warrants shall issue, but upon probable
cause,
supported by Oath or affirmation, and particularly
describing the place
to be searched, and the persons or things to be seized.”
In Indiana:
Richard Barnes and his wife were arguing as he was moving
out of their
apartment. It got heated and the wife called 911 from her
cell phone.
The first officer on the scene saw Barnes leaving an
apartment and
questioned him in the parking lot.
The officer told him that officers were responding to a 911
call.
Barnes said he was getting his things and leaving and
officers weren’t
needed. But Barnes was yelling. Another officer arrived and
Barnes kept
yelling.
The wife came into the parking lot, tossed a duffel bag
toward Barnes
and went back to the apartment. The cops followed Barnes
back to the
apartment. Barnes followed the wife inside, turned around
and blocked
the doorway. Barnes told the cops they could not enter the
apartment
and denied their requests to enter and investigate.
The wife didn’t invite the cops in but told Barnes several
times,
“Don’t do this” and “just let them in.” One of the officers
tried to
enter the apartment, Barnes shoved him against a wall, a
struggle
ensued and cops used a choke hold and taser to subdue and
arrest Barnes.
Barnes asked for a jury instruction on the right of a
citizen to
reasonably resist unlawful entry into the citizen’s home.
The court
refused the instruction. The jury convicted Barnes of Class
A
misdemeanor battery on a law enforcement officer, Class A
misdemeanor
resisting law enforcement and Class B misdemeanor disorderly
conduct.
Barnes appealed because the trial court didn’t tell the jury
about his
right to reasonably resist unlawful entry by the cops.
The appeals court found in favor of Barnes.
A new trial was ordered on the battery and resisting
charges, but the
Indiana Supreme Court granted transfer and took the case.
The high court conceded that the appeals court followed its
own
precedents in its analysis of the case, but said, “Now this
court is
faced for the first time with the question of whether
Indiana should
recognize the common-law right to reasonably resist unlawful
entry by
police officers. We conclude that public policy disfavors
any such
right. Accordingly, the trial court’s refusal to give
Barnes’
instruction was not error.”
The ruling notes the English common-law right to resist
unlawful police
action existed for more than 300 years and that some legal
scholars
trace its origin to the Magna Carta in 1215. The ruling also
acknowledges that the U.S. Supreme Court has affirmed this
right as
recently as 1948.
Nonetheless, the Indiana high court, citing in a number of
cases, noted
“a trend of abolishing the common-law right to resist an
unlawful
arrest.”
The court concluded:
“We believe however 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.” (The court cites the absence of indefinite
detention, lack of
bail, disease-infested prisons and physical torture. It also
cites the
modern developments of bail, prompt arraignment and
determination of
probable cause, the exclusionary rule, police department
internal
review and disciplinary procedure, and civil remedies as
reasons to
abolish the right to resist.)
The court found that resisting can escalate violence and
that a warrant
is not necessary for every entry into a home, citing
instances of hot
pursuit or imminent destruction of evidence.
And this:
“In sum, we hold that in Indiana the right to reasonably
resist an
unlawful police entry into a home is no longer recognized
under Indiana
law.”
Turning hundreds of years of jurisprudence on its head
apparently is no
big deal for these guys. I mean, on its face, the ruling
seems inane to
me. You have no right to “reasonably resist” an “unlawful
police
entry.” They’re not saying what the cops are doing is
lawful, just that
you can’t resist it.
In other words, you have to let the cops break the law. Huh?
What if
the cops had to play by those rules?
After I read the ruling I thought, well, that’s OK, surely
this will
get overturned by the U.S. Supreme Court.
Then I read about Kentucky v. King.
Here we go:
Cops in Lexington, Ky., followed a suspected drug dealer to
an
apartment complex. They smelled pot outside an apartment
door. They
knocked loudly and announced their presence. When they
started
knocking, they heard noises coming from the apartment. The
cops figured
the occupants were destroying evidence.
The cops announced their intent to enter the apartment,
kicked in the
door. They saw the guy they followed along with drugs in
plain view
during a sweep of the apartment. They found more evidence
during a
search later.
The Kentucky lower courts convicted King, but the state
supreme court
overturned the case, holding that cops can’t “deliberately
create the
exigent circumstances with the bad faith intent to avoid the
warrant
requirement.” Basically, the court was saying the cops could
easily
have just left the scene with the defendant unaware, went
and got a
warrant and came back.
Instead, they knew if they beat on the door and yelled
police, they
would “hear” evidence being destroyed and go in without a
warrant.
The U.S. Supreme Court overruled the Kentucky Supreme Court
in an 8-1
decision.
The high court, in rejecting the Kentucky ruling, said it
“would create
unacceptable and unwarranted difficulties for law
enforcement officers
who must make quick decisions in the field, as well as for
judges who
would be required to determine after the fact whether the
destruction
of evidence in response to a knock on the door was
reasonably
foreseeable based on what the officers knew at the time.”
The lone dissenter, Ruth Bader-Ginsberg, likely the most
liberal judge
on the bench, wrote: “The Court today arms the police with a
way
routinely to dishonor the Fourth Amendment’s warrant
requirement in
drug cases. In lieu of presenting their evidence to a
neutral
magistrate, police officers may now knock, listen, then
break the door
down, never mind that they had ample time to obtain a
warrant.”
Rarely do I agree with Ginsberg, but I do today.
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