A man’s castle is no longer his own.
Once upon a time, the Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause.
The 4th Amendment was adopted as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. In 1961, in Mapp v. Ohio, 367 U.S. 643, the Supreme Court of the United States ruled that the 4th Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment.
Alas, all that is no more.
The Supreme Court of the State of Indiana just ruled that it is unlawful for you to resist an unlawful entry into your home.
Dan Carden reports for NWI.com, “Court: No right to resist illegal cop entry into home,” May 13, 2011:
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.
For the Indiana Supreme Court’s ruling in pdf, click here.
Justice Steven David, who wrote the majority opinion, was a military lawyer and colonel in the US Army.
H/t beloved fellow Will.