Taking Back the States
Indiana's Loss of Fourth Amendment Rights
The loss of our rights and freedoms in America is increasing apace. In a recent Indiana Supreme Court decision (Barnes v. State of Indiana), that court wrote, “We hold that there is no right to reasonably resist unlawful entry by police officers.”
While the actual case is complicated and the technical decision deals with the trial court‘s failure to advise the jury of the right to reasonably resist unlawful entry, the court cut to the chase in the short summary that included the general statement just quoted. The court reviewed varying opinions on this issue, noting that the United States Supreme Court had affirmed the right to resist in 1900, and that “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 Indiana Supreme Court also notes that in 1985 “The Court of Appeals addressed this issue in Casselman v. State, 472 N.E.2d 1310, 1318 (Ind. Ct. App. 1985)” and ruled in line with this right.
The ruling then goes on to throw this out, with arguments about recourse one has if one is falsely arrested etc. (e.g., bail, prompt arraignment, and civil remedies). These recourses and law-enforcement officers’ danger in handling many cases (e.g., domestic disputes as in the Barnes case) are characterized as modern developments necessitating the abbrogration of the common-law right affirmed in 1948.
The arguments are specious, since the rights and dangers were present in 1948, when the US Supreme Court ruled on the validity of the rights, and certainly in 1985. In fact, one might think that law officers can have better protection these days with Kevlar. It should be stressed that the Indiana Supreme Court was not claiming hot pursuit or immediate danger to a third party. Nor did it indicate that Barnes was espcecially dangerous (armed or especially strong). It admitted the illegality of the entry. Still, it went against the US Supreme Court’s 1948 ruling, and it held, “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.”
The Fourth Amendment: “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.”
A right has become a nebulous “jurisprudence.”
It did not take long for one Indiana sheriff to use the decision to assert the right to random house-to-house searches. According to Allison Bricker of the “Smoking Argus Daily,” Newton County Sheriff Don Hartman Sr. said over the telephone that people would welcome them when used to capture criminals.
May 17 2011 - 11:51pm