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May 14, 2011

Indiana Supremes: All Your Home Are Belong To Us

This week the Indiana Supreme Court held in a 3-2 decision that there is no right to resist an unlawful police entry into the home. A principle enshrined in the common law and previously well-founded in the Fourth Amendment -- that "the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed" -- was decided by the three member majority to be "superseded" by modern jurisprudence.

The three-member majority explains why it is ignoring the longstanding (and current) precedent under the U.S. Constitution:

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. E.g . . . the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies. 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.

The dissenting judges noted that the majority was abandoning both a bedrock principle of the Fourth Amendment and that there was no need to depart so drastically even if they were hell-bent on ruling against this particular defendant (who seems pretty darn unsympathetic). The more obvious rule would be that which the U.S. Supreme Court and other states have applied: there is a right to resist unlawful police entry so long as the force used is reasonable.

Such a "reasonable man" rule is employed in many parts of the law and is frequently put to juries to decide. Something tells me these jurists wanted to take that determination entirely out of the hands of simple jurors...

Lawgeeks will want to take a look at both dissents here (PDF).

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posted by Gabriel Malor at 01:06 AM

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