Friday, May 13, 2011

Miserable, No Good Legal Ruling

All right, fine, the Legal Eagles tell me it's not actually as bad as it sounds; but it still stinks and sounds dreadful: our State Supreme Court, in a mentally inferior 3-2 decision (in extra innings after rain delays on a moonless night, maybe -- look, you run your courts your way and we'll... See, we're Hoosiers), decided a long-standing common-law right to resist unlawful entry (et sequelae) by the po-leece needed to be swept away.

As a practical matter, it's kinda pointless; if Johnny Law comes knockin' unwarranted nor in hot pursuit and you bar the door, you're gonna get your hinder parts handed to you no matter what; after this ruling, if in the said process of rump-handing he happens to notice any Laetrile or prostitution, De Law is now on firmer ground if/when you're brung up on charges....

Yeah, alla that. But IMO, it's not the fiddling technical details, of which you've got to be an Esq. and plugged into the local legal loop to parse in full and proper, it's the spirit of the thing; especially in that policebeings don't get a weekly mental download from the Courts and are often operating without a whole lot more information on the fiddly details than you and me. (They've got handbooks...written, mostly, by lawyers in Law French or whatever they call the jargon nowadaze. You can image the utility of this to the working Peace Officer). So there are a lot of cops out there who just heard the same news story you saw and are thinking, in the backs of their minds, that the State Supreme Court is okay with possibly a little door-kicking and/or some preemptive home visits to the hinky. Most of 'em still won't (I suspect the degree of personal restraint exercised by most sworn officers is altogether surprising, were we to learn of it) but no population is entirely free from those who Do Not Quite Get It.

And for their sake as well as ours (but mostly for ours, mine especially), this ruling needs fought. When I find out who's standing up to it, I'll let you know and we can pass the hat or have a bake sale or something. Wave signs. Go on a hunger strike and chain ourselves to the polling place door! (Look, it kind of worked for the suffragettes and all they were after was a chance to pick their oppressors). Something. ("Fetch the Gura!" Or does he only do guns? Fine, we'll have to go ACLU on 'em).

--And I want to know who sang lead in this ruling: he needs impeached. Or at least unlawfully entered upon by a policeman or two.
Link
Claire, quit hitting the snooze button on the alarm clock!

17 comments:

JC said...

The basic legal tenet here is "Quia Ego Sic Dico", IIRC. That's lawyer's Dog-Latin, as opposed to the ecclesiastical Dog-Collar-Latin

Drang said...

Linky no workee.

Seems like it pretty much nullifies the efficacy of "Do you have a warrant?"

I suppose narrowly interpreted this simply says that if I shoot the home invaders and it turns out they're a SWAT team at the wrong address, I'm screwed. But I shouldn't be screwed.

I can see a whole lotta bad coming from this, very little good, and I can't help but believe that even a Supreme Court made up of nothing but Clinton and Obama justices--or Reagan/Bush appointees for those so inclined--will shoot it down.

Underground Carpenter said...

Hi Roberta X,

Americans love 'em some "official" home invasions, but only when it's in Pakistan or one of the US-occupied countries. Come to think of it, America is now a US-occupied country.

Dave

Roberta X said...

Link works for me.

Parts of America has been occupied by Federal troops since the Whiskey Rebellion. Not to mention the civil war. (There are still more military bases in the South than the North).

Anonymous said...

We were told in my law enforcement classes quite a few years ago that it was just too bad if you got shot in a no knock raid. Don't forget that they may prosecute you but it still goes to the jury to convict you.

Ed Skinner said...

"Isn't there something about state law versus federal law and the Constitution and preemption?" asks the Arizona resident.

Roberta X said...

Yup. Needs brung up afore a Fed judge. We must find someone with standing.

Ted said...

"I saw my neighbor carry some suspicious plants into his house. I didn't get a very good look on account of the fact that his dogs are pretty vicious, but it does seem odd that he seemed to be carrying them into his basement. He probably thinks he can get away with it because he's a lawyer or something."

Anonymous tips aren't very nice, and I don't recommend doing it. Someone should let the judges know in a NICE way that people do make false tips for personal vendettas, and this stupid ruling is going to get someone hurt.

mycrofth4 said...

I seem to remember a recent story where one of Indy's finest followed an employee of a "Gentlemen's Club" out to her car and tried to coerce some personal favors. This ruling seems to say that if he had followed her home, kicked in her door and raped her, then she could be charged with resisting a police officer for trying to fight him off.
I presume that he would still face charges, but so would she.
I want all three of these judges impeached.

New Jovian Thunderbolt said...

Evil

Montie said...

Whoa, hold on here. I have to agree with the comment made by shootin' buddy over at Unc's place. I will grant you that the ruling in this case is certainy overbroad and likely to be scaled back by a federal court if challenged there, but in this particular case the officers were LAWFULLY in the residence in question and the defendant's challenge should have been rejected.

It was a domestic violence call. In most states (although I can't speak to Indiana in particular. Offiers are allowed (if not required) to make entry into the home to insure that all parties are truly OK and no-one is being intimidated to lie or cover-up.

Now, I will grant you that the officers mishandled the call in a couple of ways that alarm me a little bit. They were engaged with one party outside the residence, while the other party to the dispute had the free run of the inside of the residence. That is a VERY dangerous scenario, and one of the officers should have been with the second party in the residence. That would have prevented the provocative action by the wife which caused the defendant to re-enter the home. That is the second mistake, because he should never have been allowed to re-enter the residence in response to her provocation. That is just asking for trouble. However, they were right to, at the very least, accompany him back into the residence to insure no futher violence, his protests notwithstanding. Particularly in light of the fact that she was asking them to come in.

Just so we're on the same page, the officers were not only lawfully in the residence at that time, but at least one of them should have been inside with her from the git-go. that makes the assault on the officers in THIS case totally unlawful.

I don't understand why the court would have said that you don't have the right to resist an UNLAWFUL entry, except that the average Joe Blow citizen may not have a clear concept of what constitutes a lawful vs. an unlawful entry as exemplified by the defendant in this case.

Remember, a lawful entry is not what YOU say it is but what the COURTS have said it is. I don't always need a warrant to make what constitutes a lawful entry into your residence, but those situations are clearly defined in the law. I'm sure this was meant to protect both sides of the ineveitable confrontation that results when police enter a private residence, but giving the poice a "free ride" to violate the Fourth Amendment is not the answer.

Roberta X said...

Monte, I don't have a problem with the way the actual situation turned out (with the same could-have-been-better caveats you have), it's the verdammt ruling bothers me. It's bad law.

And I don't think it was the only way to resolve the matter specifically at issue and still produce a truly just result to that case.

That ruling is going to increase danger to officers, not reduce it.

mycrofth4 said...

Sorry Montie, but I disagree. Unlawful entry isn't what the court says. Neither is the law.
Law exists only to the extent that people accept it - and that's what scares me about crap like this.
How long will people continue to accept the law when it is rendered into offal like this?
I know there has always been corruption, but they're not even trying to hide it anymore.
When the rule of law self-destructs, society as we know it is finished.

Montie said...

Bobbi,

I agree. The ruling itself is crap. In essence it would allow me to enter your home on a virtual "fishing expedition" if I thought you were up to no good or hell, if I just didn't like you and wanted to make your life miserable.

Now, anything "discovered" in an unlawful entry would no doubt be tossed...eventually and at great expense to you.

This could also lead to even more of the militaristic tactics and no-knock warrants that I have bemoaned in the past both here and over at Tam's site. A 3 AM dynamic entry into the wrong address that is met by deadly force and results in the death or injury of occupants or officers is bad enough without it being turned into a simple whoops, my bad but WE'RE ALLOWED TO UNLAWFULLY ENTER YOUR RESIDENCE.

Mycrofth4,

I don't agree with every law I am charged to enforce. sometimes they are put into place for stupid reasons and hopefully the majority opinion of the citizenry can get them thrown into the trashbin of bad ideas as you intimate when you say a law exists only to the etent that the people accept it. But you, individually, don't get to nullify on the spot in the heat of the situation.

I take it very seriously when I have to violate someone's 4th Amendment rights by entering their home against their will, and there are really only a few logical exceptions, and that would include the case that brought forth this ridiculously overbroad decision. The case could have been addressed simply by declaring that the entry was lawful under the circumstances of the case (which it was) and as such the resistance and assaultive behavior of the defendant was unlawful.

Roberta X said...

Yep. From what I'm reading, the ruling was prompted by a singularly strained bit of logic in support of an appeal, which could have been slapped down by the means Montie suggests.

There's a real whiff of "loathsome defendant leading to a desire to slap him down so hard his ancestors say ouch" in this mess -- which is not, actually, what we pay judges to do.

"Bad cases make bad law." So do hardcases.

mycrofth4 said...

Public nullification happens all the time. Occasionally a police officer will witness the action and the individual will have to take responsibility for it, but my point is that this is becoming more common than I'm comfortable with.
I'm sure that, as a law enforcement officer, Montie has never exceeded the posted speed limit?
I've never seen any studies, but I would speculate that compliance dropped substantially during the Federal 55 mph speed limit period and never recovered. Respect is always easier to maintain than to rebuild.

John B said...

@mycrofth4 the 55mph speed limit. The great prohibition of our age. At least my coming of age. The CB, and the Radar Detector, became synonymous with the outlaw attitude toward driving 55 on a highway designed for 75. Like Prohibition of alcohol made people who'd never think of drinking into at least occasional imbibers, the 55 mph speed limit made previously mild mannered people into Larry Leadfoot. My previous professions brought me into daily contact with law enforcement. Most of them figured a new law, or interpretation was a new headache. In fact, a couple of LEOs resigned rather than face reaction to how they'd have to enforce certain laws. They figured they'd have better chances as used car salesmen, than as cops.

Most cops know better than to enter my house without a warrant. Bugger the Constitution, and they would. They just don't want to be on shaky legal ground when half my junk electronics falls on them. More of an insurance liability issue, than a Constitutional Freedom issue.

You just have to know what the law really is.