Home National Politics Your Home Is No Longer Your Castle

Your Home Is No Longer Your Castle

194
5
SHARE

The police state has arrived in America, overturning the common law of personal privacy and the right to resist “unlawful police action,” dating back to the Magna Carta in 1215, thanks to  judicial activists on the Indiana Supreme Court, whose broadly drawn split decision on 12 May 2011 in Barnes v. State of Indiana, held

There is no right to reasonably resist unlawful entry by police officers….Now this Court is faced with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers. We conclude that public policy disfavors any such right.

You read that right, a citizen no long has any right to resist unlawful police action, in this case, police officers forcing entry into the home of a private citizen without a warrant, simply because the police officers decided to do so, over the objections of the home owner. This seems to contradict Amendment IV of the U.S. Constitution, which states

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.

Granted, there were special “circumstances.” There always are. In Barnes v. Indiana we had Mr. and Mrs. Barnes arguing in public outside their house, i.e., a domestic dispute (but not, apparently, including overt domestic violence); some one however called 911 as a “domestic violence in progress” call, and when the cops arrived, the couple went inside their home. Mr. Barnes told the police they were not needed, and barred entrance. The police pushed inside anyway, Barnes resisted, they tasered him, and he ended up in the hospital.

We all know how dangerous it is to interfere in domestic disputes; police detest dealing with them, and have often been injured or killed in the process. We also all know how for generations police refused to interfere in such situations, and the women involved were brutalized by their male partners, while the public looked the other way or even fully approved, because, after all, it was the husband’s right (and his Christian duty) to discipline his wife.  Therefore, modern jurisprudence has sought to protect from injury both the women in domestic disputes and the intervening police officers, all of which provides the basis for the majority opinion that, thanks to the fact that today’s court system has made it no longer necessary to protect citizens from the horrors of medieval jails and the lengthy uncertainties of the king’s justice, today

“…In these situations we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment.  As we decline to recognize the right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance…. In sum, we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.”

One is struck by the broad sweep—- there appear to be no restrictions placed on when police judgment overrides the Fourth Amendment. A police officer can do as he pleases, lawfully or unlawfully, and no citizen has a right to resist. Imagine how a corrupt police officer can take advantage of this protective cover.  What about a clever criminal gang, properly attired, showing up at your door, calling “Police! Open up!” Will the frightened home owner no longer dare to resist the criminal invasion because he cannot be certain the thugs are not really police?  Moreover, given how judicial decisions are adroitly applied to other, completely different circumstances, the Barnes case can be considered part and parcel of a growing trend of violations of the Fourth Amendment, like the Patriot Act, which brought us warrantless data mining and electronic spying by the government—- more special “circumstances,” you see.  Thus, sliver by sliver, are our civil liberties sliced away.

Two of the Supreme Court justices dissented.  Justice Dickson bassed his dissent on common law:

“…the wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad….It would have been preferable, in my view, for the Court to have taken a more narrow approach, construing the right to resist unlawful policy entry, which extends only to reasonable resistance, by deeming unreasonable a person’s resistance… in the course of investigating reports of domestic violence…”

In other words, the Court should have shown some judicial restraint.

Justice Rucker also dissented, but based not only on common law, but on the Fourth Amendment:

“….At issue in this case is not whether Barnes had the right to resist unlawful police entry into his home—- a proposition that the State does not even contest—- but whether the entry was illegal in the first place, and, if so, whether and to what extent Barnes could resist entry without committing a battery upon the officer. Federal Fourth Amendment jurisprudence is equal to the task of resolving these issues….{the decision is ‘too broad’}, 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….”

In other words, the Court should have shown some judicial restraint.

Inasmuch as other decisions had already carved out a special circumstance for cases of domestic violence, why not simply repeat the limitations here? Unfortunately, the Indiana Supreme Court did not do so, and has given authoritarian Republican governors everywhere another wide-open framework on which to build their power grabs. I am thinking of the Michigan governor, who, I understand, had dismissed elected local governments, and replaced them with his own appointed rulers (usually a private corporation)—- his rationale is an authorization hastily passed by a Republican legislature, supposedly to protect jurisdictions near bankruptcy from themselves. Is this legal, or a usurpation, the same kind of which the American colonists accused King George III in 1776? Can the citizens of those local jurisdictions resist, legally?  Not to mention, of course, the US Supreme Court Citizens United decision, giving corporations personhood with the power of political speech. There is no doubt more to come, a little here, a little there, Wisconsin, Indiana, Michigan, Ohio….

Anywhere there are Republicans in positions of power, the erosion of democracy and civil rights continues bit by seemingly inconsequential bit, all because of special “circumstances,” like the  War on Terror, deficits, budget shortfalls, immigration, clash of civilizations, unemployment and slow job formation, you name the current faddish hysteria, any of which provides cover for the real intent: to establish the total dominance of the corporotists (usually the Republican Party), i.e., the hired overseers of the moguls of money—- corporate feudalism has arrived.  

  • sspiker

    It’s also worth pointing out the erosion of the 4th Amendment in the recent Kentucky v. King SCOTUS decision, that was surprisingly voted on by an 8-1 margin. Obviously, all 5 conservatives voted for it, but 3/4 liberal judges did, too. The assault on the 4th Amendment is not a straight R vs D battle.

  • Jim B

    How is it as this country adds more people it goes further backwards? We have a constitution, but now laws are being decided more and more by politics. Basically all you have to do these days is find out the politics of the judge or judges and you can pretty well determine the outcome.

    Even in sports we see politics being played in pro football’s case about dividing the money between the players and owners.