Indiana Cops Get the Keys to the Castle

 Posted on May 15, 2011 in Uncategorized

In a great and rare example of real judicial activism, the Indiana Supreme Court has, without even being asked, outlawed something that hundreds of years of common law have allowed and the Indiana Legislature has explicitly authorized.

And the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with immunity: agreeing herein with the sentiments of ancient Rome, as expressed in the works of Tully; "quid enim sanctius, quid omni religione munitius, quam domus unusquisque civium?" [What more sacred, what more strongly guarded by every holy feeling, than a man's own home?]

Blackstone's Commentaries on the Laws of England (1765-69).

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!

William Pitt the Elder (1708-1778).

(b) A person:(1) is justified in using reasonable force, including deadly force, against another person; and(2) does not have a duty to retreat;if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle.

Indiana Code 35-41-3-2.

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.

Indiana Supreme Court, Barnes v. State (h/t Simple Justice).

At issue in this case is not whether Barnes had the right to resist unlawful police entry into his home – a proposition that the State does not even contest – but rather whether the entry was illegal in the first place, and if so, whether and to what extent Barnes could resist entry without committing a battery upon the officer. Federal Fourth Amendment jurisprudence is equal to the task of resolving these issues.2 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. And that their sole remedy is to seek refuge in the civil arena. I disagree and therefore respectfully dissent.

Rucker, J., dissenting in Barnes v. State (emphasis added).

So in Indiana, a person is justified in using deadly force against another if necessary to keep him from unlawfully entering the person's home or curtilage...unless the other person is a cop. Cops can enter Indiana citizens' homes illegally, and the citizens cannot use any force to stop them.

With this opinion the Indiana Supreme Court abrogates Section 35-41-3-2 (not only sua sponte but also implicitly, without mentioning that statute) in part because of its aversion to violence: "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." (Note that the court, without analysis, conflates "unlawful arrests," which citizens may not use force to resist, with "unlawful entry," which citizens have historically-and in Indiana by statute-been able lawfully to forcibly resist.)

Violence is deprecated in modern society, and rightly so: there are better solutions to most modern problems. But reasonable people agree, and the law reflects, that there are some problems to which violence, and even extreme violence-deadly force-is an appropriate solution: it's why the police carry guns; it's why we have armies; and it's why it's lawful for individuals to use violence among themselves when it is necessary to protect their property, when they or others are threatened with imminent harm, and-except in Indiana-when they need to keep intruders out of their homes. When seconds count, the police are only minutes away; the availability of violence in these situations makes the good guys safer and the bad guys (including the bad cops, and the bad guys who dress up like cops) a little bit more honest.

The rejection of violence for the sake of rejecting violence is a decidedly leftist hippie pacifist stance for a court to take; the protection of the boys in blue from any resistance by the citizenry is a right-wing position. If you go far enough to the right you wind up on the left; all flavors of totalitarianism favor forcing people to trust and rely on the government to protect them, even from the government.

With the breaching of castle doors, Indiana is one big step closer to tyranny.