Indiana Supreme Court turns the 4th Amendment on its head.
Posted by iusbvision on May 16, 2011
This is one of the bad things about state and local politics and this problem is moving into the federal level more and more, that judgeship’s are becoming more like ambassadorships. No longer are qualified people demanded, or are great legal minds sought out; volunteer, lick some envelopes, make some donations, plan a few fund raisers, attend a few cocktail parties, and book a great guest at the State Barr Assoc. Dinner and whamo your a judge!
Unfortunately several states have courts like this. This will of course make it’s way to the federal courts where it will be overturned …….eventually, but that is not the point.
Here are the Indiana Supreme Court Justices and they must face the voters for a retention election come the end of their terms. While Justices Rucker and Dickson least voted no and are tolerable, the other three need to be made an example of and must be replaced by an upcoming Governor Pence. The governor cannot just pick who he likes, he must pick from a list of people chosen by the Indiana Judicial Nominating Commission which is made up mostly of the Bar Association. To put people like this up, who would have failed a 4th Amendment Question with this answer if they had taken Constitutional Law with Judge Allen Sharp as I did, tells me that the so called “Missouri Plan Method” of selecting judges has broken down, and either the Indiana Commission is a political body giving the illusion of merit, or it is infected with ideologues. In either case if a majority of judges on the court are this radical, the system is broken. More humiliation for Indiana when one day a federal court will site precedent and reverse this. The 4th amendment is incorporated to the states by the 14th Amendment, and this also gives the federal courts judicial review over such flawed state court decisions.
What is most painful, is that Justice David who wrote this abomination of a ruling, was just appointed by Governor Daniels, whose primary opponents will have a ball with this. I was just starting to get some guarded enthusiasm about Gov. Daniels possible White House run, this hurts.
Politics is politics, but messing with God-given rights recognized since Magna-Carta is something else. Print out this page and put their names on your refrigerator, when retention election time comes send them packing.
|Name||Term Start||Term Expires||Position|
|Randall Shepard||September 6, 1985||September 6, 2015||Chief Justice|
|Brent Dickson||January 6, 1986||January 6, 2016||Associate Justice|
|Frank Sullivan, Jr.||November 1, 1993||November 1, 2013||Associate Justice|
|Steven H. David||October 18, 2010||Associate Justice|
|Robert Rucker||November 19, 1999||November 19, 2009||Associate Justice|
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. — 4th Amendment to the US Constitution
The Indiana Supreme Court has ruled that the 4th Amendment needs a disclaimer when it comes to officers of the law acting unlawfully (at which point, by definition, wouldn’t they cease to be “officers of the law”?).
No, you read it right. That’s what the Indiana Supreme Court decided in what would be a laughable finding if it wasn’t so serious:
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.
The author of the story reporting this is right – somehow the ISC managed, in one fell swoop, to overturn almost 900 years of precedent, going back to the Magna Carta.
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. [emphasis mine]
Or said another way, your home is no longer your castle.
Remember the 4th Amendment to the US 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.”
Wrong – in Indiana
“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.
One has to wonder what part of “unlawful” Justice David doesn’t get. What part of the right of the people to “be secure… shall not be violated” wasn’t taught to him in law school.
How secure is anyone in their “persons, houses, papers and effects” if, per David, a police officer can waltz into any home he wants to “for any reason or no reason at all?”
The given reason by the Justice is resistance is “against public policy?” What policy is that? For whatever reason, most believe our public policy as regards our homes is set by the 4th amendment to the US Constitution. Since when does Indiana’s “public policy” abrogate the Constitutional right to be “secure in our persons, houses, papers and effects”?
Additionally, most would assume it is the job of the police not to “escalate the level of violence”, not the homeowner. Like maybe a polite knock on a door to attempt an arrest instead of a battering ram and the violent entry of a full SWAT team to arrest a suspected perpetrator of a non-violent crime. Maybe a little pre-raid intelligence gathering, or snagging the alleged perp when he leaves the house to go to work, or walk the dog, or go to the store.
Now citizens in Indiana are to give up their 4th Amendment rights because it might “elevate the violence” if they attempt to protect themselves from unlawful activity? Sounds like the “don’t resist rape” nonsense that was once so popular.
And check out this “analysis”:
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.”
So we’ll just throw out your 4th amendment right to satisfy the court’s desire to “prevent violence,” is that it?
One hopes the decision is destroyed on appeal and if the Justices are in an elected office they become very “insecure” in their probability of staying there.
The two dissenting Justices got it mostly right:
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.”
I say mostly right because they indicated that in the case of domestic violence, they too were willing to throw the 4th amendment under the bus.
How does one say “it runs afoul of the Fourth Amendment” and then later agree to a partial abrogation of the 4th under certain circumstances? What part of “shall not be violated” don’t they understand? It doesn’t say “shall not be violated except in case of domestic violence” does it?
Oh, and just to point out that this likely isn’t an outlier for this crew:
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.
Because, you know, it would be just asking too much to have the police actually justify a no-knock entrance to a judge, wouldn’t it?
And you wonder why you have to constantly protect your rights daily from attacks within?
This is why.
There have always been a difference between daytime “knock warrants” and smash and grab “no-knock” warrants. The “no-knock” smash and grab often ends up with the family dog being shot on entry. These kind of rulings encourage the police to use less restraint. With more reports of younger cops getting in trouble because of a lack of restraint (everyone has a camera phone now) if anything we should have more incentive for restraint, not less. These jackanapes on the court for some reason that abandons all logic, cannot understand that. They need to be sent back to private practice.
UPDATE – Apparently judging by what some lay people have sent via messages they completely do not understand this ruling.
If there was probable cause for the police to check on the welfare of the wife (which there may have been) than it was not an illegal entry. The problem is that the judges took it one step further and said, even if it was totally illegal and unjustified it still has our blessing – THAT is the problem. Hence the press coverage.
Essentially the three judges opinion position boils down to this, you have a Fourth Amendment right AFTER the fact. You do not have rights to be presumed presumed innocent, but rather you are presumed guilty, but IF you can afford a big fancy lawyer to take on the govt, and IF that lawyer is up to the task, and IF you can find a lawyer who is willing to sue the police YOU can go to court and if you prove you were innocent and the police invasion was unlawful, and you win you might get a damage award, after whatever damage is done to your family is already done. This takes away the burden of proof away from the state and puts it on the citizen.
What if that citizen does not have the resources to launch such a legal battle, now defacto he has no rights. It gets worse, if you have to sue, the government will defend, so they will do all they can to defeat (smear) you, investigate you up and down, do all they can to discourage you form continuing, and violate you even further because you were “foolish” enough to dare stand for your constitutional rights, but wait, it is not a right if you are presumed guilty and the burden of proof is on you, which is the entire point. So what is the incentive for the police to respect the rights of the people? Oh there is none. Instead of working to protect your rights the government must defend in court and thus work against them. Welcome to King George’s wet dream. The Constitution and the basis for Western Civilization is turned on its head. Jefferson would NOT be amused.