31 Comments

1. nrasmuss13  •  May 14, 2011 @3:25 pm
   

   I've never been a fan of judicial recalls (being generally a believer in the notion of a separate and independent judiciary). But with that said, the holding in this case flies so obviously and wretchedly in the face of a thousand years of anglo-american legal philosophy that its authors deserve to be stripped of their robes…

2. John Kindley  •  May 14, 2011 @3:37 pm
   

   Amen, brother Patrick. I've felt remiss in not writing about this "troubling" "decision" recently emitting from my own back yard. What's terrifying to me is that any day now I'm expecting a decision from this same court of monumental importance to both me and an innocent former client. The trial judge sentenced this innocent man to 45 years. The court of appeals said the trial judge should have granted a motion to dismiss filed for my former client, but the supreme court decided to take the case up on transfer. This innocent man was convicted of attempted murder for shooting a man whom my client knew had previously served time for shooting at a police officer. This "serious violent felon" marched into my former client's backyard while holding a gun in his right hand. He walked up and came within feet of my former client, even though he saw that my former client was also holding a gun while standing in front of the door to his garage. He angrily demanded access to an individual who was inside the garage. My former client's young son was also inside that garage.

   Law of the Jungle indeed.

3. SPQR  •  May 14, 2011 @4:52 pm
   

   What's especially troubling is that the majority had no need to make such sweeping pronouncements to affirm the lower court decision.

   Utter BS.

4. David  •  May 15, 2011 @8:04 am
   

   Patrick – the pull of authoritarianism is a strong force, often more so for the higher educated class.

   This may not be relevant, but I'm interesting if you think this – http://www.washingtonpost.com/local/fairfax-teacher-sean-lanigan-still-suffering-from-false-molestation-allegations/2011/03/04/AFVwhh3G_story.html – has any wider implications.

   Anyway, off to the Greenfield post!

5. Portia  •  May 15, 2011 @10:11 am
   

   This decision seems entirely correct. The remedy for a violation of the constitutional ban on illegal search is that the illegal search is not useable. Never does an individual citizen have the right to be a self appointed judge and jury and resort to violence to right what they perceive as a wrong. The Patriot Act diminishes our protection here but this decision is consistent with the rule of law.

6. Patrick  •  May 15, 2011 @11:19 am
   

   Thank you for illustrating my point in one short paragraph. You pathetic serf.

7. Portia  •  May 15, 2011 @12:11 pm
   

   So that's the best you've got??? When you have no substance, you resort to name calling. So sad.

8. Patrick  •  May 15, 2011 @12:22 pm
   

   Don't mistake brevity for superficiality Portia. I didn't mean to rebut your comment. I meant to emphasize it as illustration of a world view, for which I couldn't have found a better.

   The "serf" appellation was mere punctuation.

9. SPQR  •  May 15, 2011 @1:57 pm
   

   Portia, just why is it that you think that it is appropriate that we live in a police state?

10. Portia  •  May 15, 2011 @7:15 pm
    

    Did you read the facts of the case? How is it a police state when husband and wife are having an argument and husband is throwing things. Wife calls the police and they come and husband won't let them in. The police came because they were called and had a right to do so.
    But the issue is that using violence to resist arrest illegal and just causes more people to get hurt and serves no legitimate purpose.
    I do not favor a police state and I also don't favor individuals taking the law in their own hands and escalating violence. The anger here is misplaced. It should be directed toward the patriot act that allows intrusions without warrants and permits the authorities to look into all manner of what should be protected private transactions.

11. Not Sure  •  May 15, 2011 @7:20 pm
    

    "The anger here is misplaced. It should be directed toward the patriot act that allows intrusions without warrants and permits the authorities to look into all manner of what should be protected private transactions."

    Yes- God forbid our "public servants" should be able to figure out all on their own that they need warrants.

    "I'd love to not be violating your Constitutional rights, but the law doesn't allow me that luxury. Submit, or be shot/tazed."

12. Patrick  •  May 15, 2011 @7:30 pm
    

    Of course I read the case Portia. I'll assume you read it as well, but did you understand it?

    The issue is not that Barnes used violence to resist arrest. Barnes was not under arrest. Barnes used violence (a shove) to eject intruders who had entered his home, illegally, under color of law.

    Then Barnes was arrested. He was arrested for shoving a trespasser, who by virtue of a badge according to the Indiana court, is like a Roman tribune sacrosanct and protected from any exercise of force even though he enters another man's home illegally.

    That you approve of this is why I called you a serf. Like a serf, you have no right to resist when your lord (the policeman) enters your home. And like a serf, you apparently believe this to be a just state of affairs. You're living in the wrong country, and the wrong age. You belong in medieval Europe. And I resent that I have to live in a country where you may bring your medieval serf's viewpoint into a voting booth, to cast your serf's ballot for lords who will appoint serf judges to order your serf life because you're too servile to think for yourself.

13. Packratt  •  May 15, 2011 @7:54 pm
    

    I myself am interested in watching to see if there will be a jump in home invasions for Indiana by people presenting themselves as law enforcement.

    In fact, I'm also sort of curious as to whether they will follow this line of logic and apply it next time a home owner attempts to defend his or her home against intruders who aren't officers by declaring that the home owner should have let the intruders have their way because you can always seek remedy afterward through the court and resisting a criminal only leads to more violence.

14. Patrick  •  May 15, 2011 @8:27 pm
    

    The logic of the court's opinion, followed to its end, would surely support a tort award in favor of a burglar shot (shoved?) by a homeowner Packratt.

15. Ephraim Tutt  •  May 15, 2011 @8:49 pm
    

    The misdirected anger is amazing. The so-called conservative strict constructionist judges and justices consistently rule in favor of bigger, more invasive government over individual rights, for mega-corporations over small businesses and individuals, and for property over people. Rulings in favor of individual rights (other than when it comes to guns) almost always comes from the more liberal justices. If the Libertarians were serious, they would be calling for more justices like Sotomayor and Kagan instead of more like Scalia, Thomas, Alito, and Roberts.

    As for the Indiana case, I, who do not live in Indiana, would have concurred in the result but not changed the Common Law. The wife effectively invited the police in. She had as much right to do that as her husband. Once she did that, he had no right to overrule her.

16. Portia  •  May 15, 2011 @9:02 pm
    

    The wife, who lived in the house, called the police. That gave the police the right to be there. There were no tresspassers only police called to stop domestic violence. This case is so unworthy of your outrage. Yikes!

17. Stick  •  May 15, 2011 @9:16 pm
    

    America, the land of the free. What a joke you have become to the rest of the world. This is the same sort of crap your former enemy the USSR used to pull, and what you used to say you would fight against.

18. John Kindley  •  May 15, 2011 @9:59 pm
    

    Don't confuse the court's recitation of the facts with what really happened. The court of appeals found that Barnes' tendered instruction was supported by the facts. And even if the jury, after being given this instruction and hearing the actual evidence, might have found that under these particular circumstances the entry of the police into the home was not unlawful, there was no need for the supreme court to rule as sweepingly as it did. The "breathtaking" and unnecessary sweep of the majority opinion is what the dissenters found so objectionable. The majority opinion is indeed so worthy of outrage.

19. Ranulfo  •  May 15, 2011 @10:24 pm
    

    Wanna know whats worse John? Read the dissenters opinion, if the majority had ruled it ok just on domestic violence grounds they would have joined in.

    I could see exigent circumstances justifying the police actions but when looking at the whole affair, the cops as per usual just escalated the whole situation merely for being questioned or not being obeyed like good little serfs should. The guy was already on his way out IIRC, at his car when the cops showed up.

    With the war on drugs and domestic violence laws, the 4th has been battered and now totally destroyed in Indiana. The majority's reasons for this ruling are those of robed thugs living in la la land.

20. nrasmuss13  •  May 15, 2011 @11:48 pm
    

    It would seem that whole 2nd Amendment thing ain't necessarily worth so much either….(Sigh). Public Policy and all.

21. strech  •  May 16, 2011 @5:15 am
    

    The wife, who lived in the house, called the police. That gave the police the right to be there.

    Except that's not what the decision actually says. The decision is quite explicit that even if the police entered illegally, they could not be resisted. It's in the third sentence of the decision:

    We hold that there is no right to reasonably resist unlawful entry by police officers.

22. Ephraim Tutt  •  May 16, 2011 @9:03 am
    

    What's your point, Strech? Given an opportunity to erode civil rights, you can count on the strict constructionists to do so.

23. John Kindley  •  May 16, 2011 @1:51 pm
    

    What are you guys DOIN? Going all Instapundit on us, with no warning, no explanation, no opportunity to COMMENT?

24. PeeDub  •  May 16, 2011 @2:21 pm
    

    My guess is either

    A) Contest
    or
    b) Attempt to screw with/befuddle spammers

25. Portia  •  May 16, 2011 @6:25 pm
    

    "We hold that there is no right to reasonably resist unlawful entry by police officers."
    The determination as to whether an entry BY POLICE OFFICERS is lawful or unlawful is made at a later time by a judge not the individual at the time and place of the entry. That's all I'm saying

26. Ephraim Tutt  •  May 16, 2011 @9:04 pm
    

    The U.S. Supreme Court ruled 8-1 today in Kentucky v. King that Kentucky police who smelled marijuana at an apartment door, knocked loudly and announced themselves, and then kicked in the door when they thought the drugs were being destroyed did nothing wrong.

    Justice Ruth Bader Ginsburg strongly disagreed. In her dissent she wrote, “The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases … In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”

    No comment required.

27. jb  •  May 16, 2011 @9:54 pm
    

    What happened after this post? Did we switch to viewing the twitter feed? Could we have a daily digest post instead of 400 one-liners? That is not the quality of commentary I heretofore came to this blog for.

28. Bill  •  May 18, 2011 @7:49 am
    

    Portia, you say that "this decision seems entirely correct. The remedy for a violation of the constitutional ban on illegal search is that the illegal search is not useable. Never does an individual citizen have the right to be a self appointed judge and jury and resort to violence to right what they perceive as a wrong."

    To your first point, to my knowledge there is no evidence of a crime in my home, how does it benefit me to know that the fruit of an illegal search of my home is not usable in court? How many illegal searches am I supposed to tolerate? This is a HUGE problem with the Exclusionary Rule: it only provides a remedy for the guilty, or those who might appear to a court to be guilty.

    Further, the question is not whether one has the right to be "judge and jury"; the question is whether or not one has a right to self-defense. If a woman fights off a rapist, is she acting as "judge and jury"? NO! She is courageously exercising her right to self-defense. If a police officer is illegally entering someone's home, he is at that moment committing a crime. What this decision does is (further) establish that police officer as a special, protected class of criminal.

29. MDGuy  •  May 18, 2011 @10:45 am
    

    So Portia, just as a hypothetical, if a police officer were to show up at his ex-girlfriend's house to threaten, harass, intimidate or beat her for breaking up with him, she's not in any position to determine that his barging into her home is an illegal act? Can she even lock her doors or would that be considered "resisting entry?" Your position seems to be that she should just take her beating and then limp to the courts for redress that may take months or even years to see through, assuming there's any redress at all. The courts in this case could have ruled that the wife's exhortations to her husband to allow the police to enter created exigent circumstances that made their entry legal. That's not what they ruled. They effectively ruled that the ex-girlfriend in this hypothetical situation has no right to resist the officer's entry, no matter how blatantly and plainly illegal. How ironic that a case born of a domestic violence incident can effectively be used to allow police to commit domestic violence.

30. Russ  •  May 18, 2011 @10:51 am
    

    The determination as to whether an entry BY POLICE OFFICERS is lawful or unlawful is made at a later time by a judge not the individual at the time and place of the entry. That’s all I’m saying

    That is some of the most totalitarian logic I've ever read.

    There is NO POINT in having the court merely admit the entry was unlawful if the subsequent actions taken are the entire point of the case. basically, you logic says the police can make an unlawful entry and the only remedy you are allowed is some valueless admission in a docket that says "Yeah, it was illegal."

    The very unlawfulness of the initial action spurred other actions. Basically you are saying the first unlawful action doesn't matter to the subsequent actions. Not only is that farcical, but you are going to wind up with more dead police and dead citizens because of it. Whatever else you want to call it, it's a rather useless way of making and applying law; the entire point of law is to reduce violent confrontation whenever possible – this decision gives carte blanche to the state to commit the first, triggering, unlawful action.

    The reduction ad absurdum for your logic, and the courts', is that the law and the court system are immaterial. And that is the exact. occasional anarchy the legal structure is supposed to prevent. Instead, it is enabling it.

31. Fascist Nation  •  May 18, 2011 @1:41 pm
    

    The CONstitution. You mean that antiquated document that means whatever 5 black robed pirates (or 8 in this case) says it means. That CONstitution? That somehow binds me into being subservient to a central ruling authority… under penalty of death. Yup, that CONstitution: Working like a champ since 1793.

3 Trackbacks

• May 15, 2011: “The Lair of the Wolf is his refuge, and where he has made him his home, Not even the Head Wolf may enter, not even the Council may come.” | People v. State
• May 18, 2011: Morning Links | The Agitator
• May 18, 2011: Pour out a fifth for the fourth. « Whipped Cream Difficulties