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. – Fourth Amendment, U.S. Constitution
A man’s home is his castle. – Unknown
For centuries, our jurisprudence has held dear the idea that government cannot enter your home without a warrant, or more recently, has allowed warrantless entry in the presence of exigent circumstances. However, this week, the Indiana Supreme Court has issued a sweeping ruling deciding that there is no right to resist unlawful entry by law enforcement into your home.
The money quote from the ruling:
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., Warner, supra, at 330 (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist); State v. Hobson, 577 N.W.2d 825, 835–36 (Wis. 1998) (citing 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—as evident by the facts of this instant case. E.g., Hobson, 577 N.W.2d at 836 (―But in arrest situations that are often ripe for rapid escalation, one‘s ‗measured‘ response may fast become excessive.‖). 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. E.g., United States v. Santana, 427 U.S. 38, 42–43 (1976) (holding that retreat into a defendant‘s house could not thwart an otherwise proper arrest made in the course of a ―hot pursuit‖); Holder v. State, 847 N.E.2d 930, 938 (Ind. 2006) (―Possible imminent destruction of evidence is one exigent circumstance that may justify a warrantless entry into a home if the fear on the part of the police that the evidence was immediately about to be destroyed is objectively reasonable.‖). Even with a warrant, officers may have acted in good faith in entering a home, only to find later that their entry was in error. E.g., Arizona v. Evans, 514 U.S. 1, 11 (1994); United States v. Leon, 468 U.S. 897, 922–25 (1984). In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment.
Let that sink in for a moment.
With those few words, the Indiana Supreme Court determined that victims of illegal entries and searches only have a civil legal remedies for those illegal acts by the state. This means that you have to suffer the violation of the curtilage of your residence, and it is on you to obtain redress for this violation after the fact.
“So what?” you ask.
Well, aside from turning the notion of preventing the invasion of privacy by the state on its ear, it also invites abuses by the state by enshrining as legal precedent the notion that it is easier to say sorry than it is to ask permission. The home has always been sacrosanct in our jurisprudence. The exceptions to the warrant requirements were a nod to the realities of public safety and duty that law enforcement had to provide it. However , the minute that we are stripped of the right to defend against an illegal entry into our homes, and told that we can only seek a remedy after the fact, the state is given the green light to make mistakes and to exceed its authority on the basis of the judgment of its agents alone.
If the our forebears thought it important enough to hold our home and possessions out of the reach of the prying eyes of authority absent certain exceptions, to eliminate the right of prevention of such prying, and make the victim responsible for obtaining redress is a gross violation of the spirit of the law. With such a right, the onus needs to be on the government…to have an exigent circumstance, to have a warrant, to have the correct address on the warrant. We have the right to expect no less, and to make such a ruling reduces, rather than increases the government’s incentive to get it right and to have met its burdens.
Having said that, I think that the result in this case was the correct one.
If the Court had decided that a domestic violence call is an exigent circumstance, which would have been a reasonable conclusion, then it would have been a ruling that I could have supported. But in this case, the Court used a nuclear bomb to light a fire when a match would have been sufficient, and basic liberty is now standing in the fallout zone.
Translation: We the State can do what we please, and if you don’t like it, good luck trying to get redress.
Whatever makes you think they would EVER say they are “sorry”??
They say they are sorry when they lose multimillion dollar lawsuits….and it can happen, but unfortunately it takes a very long time.
That’s it. Enough. From now on, I’m answering the door locked, loaded, and with the safety off.
They won’t even knock anymore. They’ll just bust in.
Francis needs to listen to N.W,A.’s “F*ck tha Police”. 🙂
I demand my liberty!
Ron Paul in 2012!
Laugh, clown, laugh. If you had any idea what freedom means, what preconditions it requires, and how much you’ll miss it when it’s gone, you’d be at your local gun shop this instant. But I’ve discerned from your other comments here that you imagine yourself immune to such things — a commissar-to-be when the rest of us are firmly and finally yoked. (“Yes, Madam, everything’s going to be equal now. I shall go in silks and you’ll carry coal.”)
As for Niggerz With Attitude — I’m not a mealy-mouthed pantywaist, so I’m going to call those thugs with a recording contract by the name they gave themselves — you can have them all to yourself. I listen to actual music. You know, harmony, melody, counterpoint!
He’s not a clown, Francis – he is worse. He is actively cheering for our rights to be taken away, so that he can try to assume the “commisar-to-be” role.
It’s not wrong when progressives do it.
The sad thing is, in this case there was no unlawful entry. The courts could have just ruled so and it would have been done. Instead, in a 3-2 decision, they had to wipe their collective asses on the Fourth Amendment.
This will not end well.
Those last five words are perfect.
I am curious if the visiting liberal.Rutherford that’d be you, is at all concerned how this is most likely to impact the minority community in Indiana.
I’d think it would be hard to be so glib when this gets turned the inner city types in Indianapolis.
And this, to me, is the most chilling statement of all in that turd of a decision:
“we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment“.
This ruling is no more than another nail in the coffin being constructed for the rule of law. Another reason to be highly skeptical of dependence on the police for protection.
Alfie correctly busted me. I came to a fork in the road and chose the one most traveled, the glib one.
But there really was meaning behind my foolishness … I was just too lazy to spell it out at the time.
Francis and others hadn’t the least bit of interest when Dr. Dre, Easy-E and Ice Cube sang about police harassment and their approach to it. But now that folks with whom Francis identifies are getting “hassled by the man”, suddenly he’s ready to answer the door locked and loaded. It would be laughable if it weren’t so tragic. Reminds me of “First they came for the communists and I didn’t speak out…”
So yes Francis, whether you like it or not, you now have more in common with NWA than you’d care to admit. (By the way, if you’re gonna spell out their name, at least spell it right.)
Alfie, I fully understand the impact cops busting into a house has on the minority community. That’s exactly why I pointed Francis to “F*ck tha Police”.
As for my wise crack about Ron Paul … there is a lot about him that I genuinely like. I’m really pissed he’s got racist newsletters in his past (which he claims he didn’t review prior to publication). If it weren’t for that I’d be sorely tempted to vote for him. (Well then again, I’m not sure I like his and his son’s defense of white’s only restaurants, etc.)
But why doesn’t libertarianism appeal to you guys? You yell and scream about the Fed getting too big, about your rights slowly being taken away. I’d think you would hold Ron up on your shoulders … give thousands to his campaign. Why not?
Finally, Francis I read your post that you linked to. Interesting post and one with which I don’t completely disagree. I don’t defend NWA’s approach that they get to use the N word and you don’t. I think that’s ridiculous. I don’t believe ANYONE should use it. Blacks who use it are fools, plain and simple. I also consider most RAP the lowest form of “art” ever thrust upon the American people. As the author of this blog can tell you, my tastes run to CCR, R.E.M. and Green Day.
But Francis I do have a question for you. Disabled parking spaces have been of major help to me in fully participating in society and contributing to it. I don’t believe I have a “right” to one. But I damn sure appreciate them. Do you think they should be eliminated?
As the author of this blog can tell you, my tastes run to CCR, R.E.M. and Green Day.
Yes, but are we talking about “Fables of the Reconstruction” R.E.M. that was cool as Hell, or “Automatic for the People” R.E.M. that was a sellout?
And c’mon…who doesn’t dig something like say…Public Enemy’s “Bring the Noise”, or Q-Tip’s “Vivrant Thing”, or US3’s ultra cool tracks?
But Francis I do have a question for you. Disabled parking spaces have been of major help to me in fully participating in society and contributing to it. I don’t believe I have a “right” to one. But I damn sure appreciate them. Do you think they should be eliminated?
I can’t speak for Fran, but my response would be that
(1) I can’t prevent government from providing them on its property;
(2) I don’t have any issue with private landowners who want to provide them, and allowing law enforcement to ticket those who do not have the proper credentials to park in the properly designated and marked handicapped spaces, but do so anyway; and
(3) And I absolutely reject the notion that government has the right to force private landowners to provide them.
Hell’s Bells, I put up music regularly at mine. It for sure isn’t that either!
I still stand by the Constitution. That 4th Amendment IS there, and anyone in violation of the Constitution is guilty of willful treason. I may not survive, but I will not go alone.
Libertarianism is too close to anarchy for me…
BiW, while I share your admiration for “Fables” (Driver 8 is one of my all time favorite songs), I am surprised you singled out “Automatic” as the sell out album. I would have chosen “Out of Time” which strove to be very commercial (and succeeded). I happen to like “Out of Time” and “Automatic for the People”, the latter being quite melancholy and hardly an example of sellout. In fact, I don’t think the band lost its way until Bill Berry left and they released “Up”.
Well now you are getting into Ron/Rand Paul country aren’t you? This revolves around the mandate to provide accommodation. So, for example, shouldn’t a store keeper or restaurant owner be allowed to say “no blacks can shop/eat here”? After all, why should the government be allowed to force him to accommodate a particular type of clientele?
Where does that leave us? It leaves us with a society that limits access by default to certain minorities. How can that be a free society?
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“I’d think you would hold Ron up on your shoulders … give thousands to his campaign. Why not?”
I don’t care for him because he is a racist. And an idiot about foreign policy.
How very like you to try and equate not providing a convienently close parking space to denying to provide a service you offer to the public. You don’t see a difference? I guess not, since you claim “Disabled parking spaces have been of major help to me in fully participating in society and contributing to it. ” So you wouldn’t go to your job (that contributing to society thing) if you didn’t have a disabled parking space?
Agile,
Well of course the two things are not identical. But here’s the thing … a “conveniently close parking spot” slightly misses the point because we’re not talking about a spot in front of the building vs a spot a few feet or yards away. In a very full parking spot, we’re talking the difference between a spot in front of the building vs a spot a very long distance away. (In fact, when I’m faced with a disabled spot and a non-disabled spot right next to it, I usually take the non-disabled spot because I figure there may be someone in greater need than I.)
Back when I worked in an office building, of course I went to work regardless of the availability of nearby parking. Some days all the “handicap spots” were full and I was stuck with a long walk. But I have to tell you, especially in winter, the availability of nearby parking or lack thereof caused a decent bit of anxiety. So, as I said, I don’t feel I have a “right” to it, but I’m damn appreciative that the state mandates that certain establishments provide them.
But honestly, I’m surprised by your reaction to Paul. Are you calling him a racist based on the newsletters in his past or based on his take on the civil rights act? I am pleasantly surprised that you find it objectionable that a private business owner has the right to discriminate against certain clientele. There’s hope for you yet. 🙂
“In a very full parking spot” should have read “In a very full parking lot” 😦
I am pleasantly surprised that you find it objectionable that a private business owner has the right to discriminate against certain clientele. There’s hope for you yet.
Unsurprisingly, you have focused your attention on the wrong element of the analysis.
Discrimination in public accomodations is wrong because it would violate the Commerce Clause (the real Commerce Clause, not the left’s magical Commerce Clause under which even breathing is commerce and therefore subject to regulation by Fediathan). This means that if you have a hotel or restaurant, you cannot discriminate against potential patrons.
However, your interpretation is much broader, and does not comport with reality. I have a private business, and I can choose who I will and who I won’t serve ALL DAY LONG. While I have never turned a client away for reasons of race, gender, creed, or age. I have turned away business based on the client’s ability to pay. (This is a business, and although I am expected to do pro bono work, that is MY decision, and not the client’s) I have turned them away because I didn’t believe them. I have turned them away because I didn’t think that they had a case, and I have turned them away for the various red flags that other members of my tribe would also recognize.
I have even turned them away because I just didn’t have a good gut reaction to them. And it is both ehtical and legal.
Not all discrimination is illegal or wrong, not even when practiced by a private business, and your expansion of the criteria, while not unexpected, is not in any way accurate, either.
And parking spots and providing an advertised service? Two VERY different things. But then, I’m not supportive of government imposing smoking bans on private businesses either. Some things are just not the government’s business…on ANY level.
I’m left to wonder when are you governed by your own sense of right and wrong as opposed to some literal (according to you) interpretation of the Constitution? Discrimination (certain forms of it) is wrong because it is wrong. It has nothing to do with the Commerce Clause.
This is where I think you and I consistently hit a fork in the road. I believe it is government’s job to nudge us into doing what is right. You believe the government should have no role in that. Clearly, two opposing views of the role of government.
I believe it is government’s job to nudge us into doing what is right.
Not just “NO!!!!!!” but “HELL NO!!!!!”
Rutherford, government’s job isn’t to nudge me into ANYTHING. Government is meant to serve us, not the other way around.
I dare you…read the Constitution. Read the Federalist Papers. Read the Anti-Federalist Papers. Read ANY treatise on government written before 1900. You will not find any line about government’s role being nudging, pushing, declaring, or imposing “what is right”. And there is a reason for it. Such action would reduce freedom and liberty, not increase it. The only thing that is more reprehensible than a government that would take the freedom of its people in such a fashion is a people who would surrender those freedoms willingly to be lead by the nose by government.
I’m left to wonder when are you governed by your own sense of right and wrong as opposed to some literal (according to you) interpretation of the Constitution? Discrimination (certain forms of it) is wrong because it is wrong. It has nothing to do with the Commerce Clause.
Oh, and once again, you’re being tripped up by what you really do not know.
The Heart of Atlanta case is the game changer on “discrimination” in public accomodations, and yes, the decision did rest on the Commerce Clause.
On a side note, DNR have always been allowed to waltz in your house any damn time they please.
Pisses me off. They are the Cheka of the woods.
3 or 4 liberty decaying court rulings like this one mixed in with another kettle of Q3 money printing soup and I’m about to get radical.
I believe it is government’s job to nudge us into doing what is right.
And so when goverments change (as they do), what they “nudge” us towards can then change as well? Or only when the nudge is in a direction you think is correct?
How about a tax deduction for every firearm purchase? Or subsidies for babyfood makers? Or a $400 goverment rebate check for every person who is a registered member of a church?
Wow Dog, how did you know I’d support all three of those ideas? Guns, babies and church, everything that’s right about America! Oh I forgot apple pie and Chevrolet. 😀
I freaking hate most Chevys, at last modern ones.
Well at least you like apple pie. Otherwise, I’d have to ask to see “your papers”. 😉
Why I can’t support this ruling: Along with those points made by BiC.
While I was still working as a Paramedic I witnessed, while on stand by of Police, or responding to a request for service by Police.
Domestic Violence: Never once did I see a woman arrested for non felony DV. Even with the male party stabbed, shot, or with his head bashed in by the female, and not a scratch on her.
An invalid killed while laying in bed, reaching for a can of soda by an Officer who thought the soda was a gun.
An entire family terrorized for hours by the Police that had kicked in the door to their home, along with the husbands face. The place that was meant to be searched was three houses down the street. By the time they figured that out, yes, the bad guys and their goodies were long gone. This variation happened several times.
A man choked to the point of brain damage after his name was discovered; oops, same name, wrong person…
The list goes on, and on. And no, monetary damages, if they can be collected, can never restore the dignity of your home…
You paint a pretty dark portrait of the police. Do you think this over-zealousness is the exception or the rule?
(1) Depends in part on the police…some individuals/units/departments have a well deserved reputation for being weak with procedure but quick on the draw, or willing to make shit up to cover their own mistakes. I’ve encountered it professionally.;
(2) And at what point does such gross behavior cross the line? Is it ok when it happens to your neighbor and wrong when it happens to you? The correct answer is to err on the side of liberty and ALWAYS put the onus of being correct on the backs of the LEOs. It discourages abuse, and allows the individual to defend their liberties against wrongful intrusion. Period, end of story.
Rutherford: I seriously have to believe that it is in fact the exception. The problem is that if it happens in one location, and goes unpunished, then the same actions will be repeated elsewhere. Hence the great uproar over the Grandma being disarmed post Katrina, and left unable to properly and effectively defend herself in the middle of what might best be described as a chaotic situation. Contrast that with the Korean immigrants on rooftops with semi automatic rifles during the Los Angles riots defending themselves as well as their neighbors. With weapons that are now illegal to own in California by the way… What a difference in how things were handled.
It only takes a few bad apples as the saying goes…
We, as people, need to be able to trust those in public safety. Be that Fire, Police, or EMS. Not fear them, or worse, see them as oppressors or enemies hell bent on the destruction of our lives and liberty.
What makes the men and women of ‘government’ better or more moral or more knowledgeable, than the average man or woman, to nudge them into ‘what is right’. Right by whose definition?
But beasn, they went to Harvard. They MUST know better than you. I mean, they are all edumincated and stuff.
Yeah, well, so am I. The difference is, I worked for mine.
I also know that Guam will stay upright.
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“This means that you have to suffer the violation of the curtilage of your residence, and it is on you to obtain redress for this violation after the fact.
“So what?” you ask.”
Having been on the front lines, literally, of the “battle for the front door” as Homeschool Legal Defense Association termed it, as a homeschooler (fortunately now all finished and grown up) I sure as hell never asked “So what?” This is utterly horrifying and it MUST be struck down. Telling government agencies they are free to abuse their power against citizens isn’t REMOTELY acceptable, and I can’t believe the people in Indiana aren’t on the streets as we speak. The night wouldn’t have ended before I was, if it were happening here. And if it means I go to Indiana, then there I go; there is no way NO ONE was fighting this already (HSLDA would never have let it go for a minute.)
Ah ok; they *have* been on it – here’s what they advise members (and any responsible citizen – this is truly their DUTY) – “The Fourth Amendment still protects your right to the privacy of your home. You are not required by Barnes v. State to consent to the entry of your home; you just can’t forcibly resist authorities’ attempts to enter.”
Yes, I remember that advice even in states where they weren’t so open about their intent to abuse their power (I mean, CPS always has thought it was exempt from the constitution anyway) – as a civic duty, citizens should have a recorder AT THE READY in case their home is ever violated (people with children are particularly vulnerable to this form of abuse by CPS). Then when your home is being invaded you need to record the entire exchange, explain to them that you are NOT going to BAR the door, but that you are going to close it. That you do NOT consent to an entry or a search (absent exigent circumstances) but you will not forcibly resist, and that they will have to open the door and enter for themselves. You stand aside and let them do so if you really must. If you are a homeschooler be SURE and have HSLDA on retainer – for a mere $100 per year, to have a lawyer ON CALL is invaluable. If you are not, do your reasonable best to retain legal counsel (HSLDA will recommend lawyers that aren’t just for homeschoolers but are knowledgeable about this issue in particular and believe in our civil rights) and thus have a lawyer to contact the minute you know you are being invaded. In addition to taping the episode, get that lawyer on the phone as soon as the knock comes at the door. This way you have a lawyer as witness and occasionally the gov’t agents will even speak to them and they can resolve it without busting in on you. Anyway, I used to have a card on my door with the exact steps – I kept it until the kids turned 18, along with the phone number of the lawyers. (The key words were “I’m a member, and I’m having an emergency”.) If I were an Indiana citizen, you bet your ass I’d have the same thing right now and would follow it to the letter.
For the most part the police force here seems pretty aware of the legal protection against unlawful search and seizure – but to be sure, the child protection agencies are always the last to know about it. Often you have to call the police yourself to drum some education into their pointy heads.
“Child Protection Agencies..?” More like agents of mysandry on steroids and smoking crack. But, I digress…
Rutherford – YOu are painting with a pretty broad brush. I, for one, like the song “F the police” oonly I am more partial to the version performed by Rage Against the Machine. The fact is, police oversteps have been police oversteps from day one. I have never cheered for them when they were only overstepping on minorities, and i certainly do not cheer for them now when they are effecting everyone because I do not make such distinctions.
A police overstep is a police overstep. I could care less about the color of the skin of the person whos rights are being trampled. If anyone, including you, thinks that it has any bearing at all, perhaps they should re-examine themselves and decide why.
As for hanidcapped parking, I am all for it. I think it is a great thing to do. I do not think that private property owners, including those who run public establishments, should be compelled by legal fiat to provide them if they choose not to. In this day and age, it is a cinch to see that a choice to not do so would be damaging to a business, so they would all do it without the gun barrel of government against their temple. People should get these things with their feet and wallet. Non-smoking laws are a perfect example. if you don’t like going to smoky establishments, then don’t. If enough people choose that, the owner will CHOOSE to make his facility non-smoking, or he will CHOOSE not and you can continue not going there. You shouldn’t need your little thugs with their guns to go there and tell him, nay, FORCE him to your will, you petty tyrannical little man.
It takes a certain kind of tyrant to tell a private property owner what he can and cannot do on his property, and that sort of man is lamentable in my opinion.
I missed the furtherance of the coversation as it applies to discrimination in housing, lodging, or services in private companies.
I stand by my statement that in this day and age, any company that discriminates against people would not last long. The information networks that we have mean that even the smallest of us have a huge voice, and people could change the actions of a business with their feet and their wallets. If you really care so much, don’t do business with them. They will either go bankrupt or change their policy voluntarily and no one’s right to private property and self-determintion are trampled. Hell, if it is important enough to you, picket the place to get the word out.
The problem is that people are too lazy and want instant gratification, and they’ve found that if they send their little government goons with their guns over to the business, things change faster and they don’t have to bear the inconvenience of shopping at a different store that doesn’t ban the Irish. They have become convinced that government is the solution to all problems, and instead of working to change things themselves through market forces as freedom-loving individuals, they have become petty little tyrants that think that they get to dictate to all people how they should live their lives/run their business/raise their children and so forth.
Damn it, as bad as it is, a private citizen running a private business on private property should have every right to ban the Irish if he wants to. I would disagree with his decision and not shop there, but a true libertarian would understand that the proprietor is a sovereign individual who shouldn’t have his choices dictated by his neighbors, even if they are stupid, so long as his choices do not cause harm to his neighbors.