And another one bites the dust....
Barnes contests that the trial court's failure to advise the jury on the right to reasonably resist unlawful entry by police officers constituted reversible error and that the evidence was insufficient to sustain his convictions. We hold that there is no right to reasonably resist unlawful entry by police officers.
Background is necessary.
The defendant was arguing with his wife as they were moving out of their apartment. 911 was called during the process but the call clearly stated that no personal violence had occurred (the call stated that Richard had thrown things he personally owned, but had not struck a person.)
When the police arrived there was no evidence of physical violence having been done to a person and in fact the wife was willingly interacting in a close fashion with the defendant. The defendant blocked the door to his personal residence and refused the police entry asserting they had no right to cross the threshold of the residence; they then initiated violence, including using a Taser.
On appeal the court took notice of the nearly eight hundred year nearly-unbroken right to resist an unlawful arrest, including:
The English common-law right to resist unlawful police action existed for over three hundred years, and some scholars trace its origin to the Magna Carta in 1215. Craig Hemmens & Daniel Levin, "Not a Law at All": A Call for the Return to the Common Law Right to Resist Unlawful Arrest, 29 Sw. U. L. Rev. 1, 9 (1999). The United States Supreme Court recognized this right in Bad Elk v. United States, 177 U.S. 529, 535 (1900): "If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest." The Supreme Court has affirmed this right as recently as 1948. United States v. Di Re, 332 U.S. 581, 594 (1948) ("One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases.").
The court goes on to argue:
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.
They do?
Tell that to people who are awakened in the middle of the night believing their home is under assault by unlawful armed invaders and put up resistance. They are frequently shot to death by the police. The raid is then found to have been unlawful as it was on the wrong house or did not comport with the legal requirements for the warrant under the 4th Amendment.
What means of redress exist for the dead persons in that circumstance?
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.
There is supposed to be risk, including risk to the officers, when they conduct an illegal arrest. As they are the ones initiating unlawful violence in that circumstance they are also the ones who are, and should be, exposed to the danger from that violence.
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.
True, but there was no argument made here for "hot pursuit" or "exigent circumstances." There was no evidence that a physical battery had taken place or that one was imminent. The person's locale was obvious and there was no evidence introduced (nor could there be under the circumstances) of either imminent felony or destruction of evidence.
In this case the attendant circumstance was mere expedience on the part of the police officers.
We note, however, that the officers were investigating a domestic violence in progress in response to a 911 call.
No they weren't. There was no objective evidence of domestic violence in progress or an event that had just been completed. A person has a right to destroy their own property provided they do not do so in a manner dangerous to others. The evidence at bar is that the defendant was destroying his own personal property.
The dispatcher's claim, standing alone, is not evidence (it is at best "hearsay") and was immediately and objectively rebutted upon the officer's arrival on the scene.
The officers cannot properly assess the complaint and the dangers to those threatened without some limited access to the involved parties.
They had such evidence and access. When the officers arrived they saw both husband and wife. Neither party showed interest in interaction with said officers and in fact the record shows that both acted to withdraw from said officers' presence which is utterly inconsistent with either of them being battered and thus requiring or desiring law enforcement intervention.
Probable cause was destroyed the minute law enforcement arrived as not only did neither party show interest in interaction with the officers there was no evidence that either had been struck or otherwise injured.
Lacking probable cause to believe a crime had been or was about to be committed the officers had no right to enter upon this man's private property. That should have been the beginning and end of it and in fact law stretching back to 1200 AD, wildly pre-dating the foundation of this nation, has repeatedly recognized that it is.
In sum, we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.
Then you no longer have a 4th Amendment in Indiana and Indiana is now both a police state and the United States as a federal government is now in violation of its Constitutional duty to guarantee that each state has a republican form of government.
Mitch Daniels, Governor of Indiana, by not directing his State Attorney General and Prosecutors to drop this case and moot the appeal, has demonstrated through his direct and proximate actions that he is Adolph Hitler personified and is thus disqualified to run for President of the United States.
Does anyone remember how that right to "redress" in the courts for illegal arrests worked out for the Jews in Germany?
