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Justices discard 300 years of law

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!

–William Pitt, Earl of Chatham,

18th century English Parliament debate

The U.S. Supreme Court cited this speech in a 1958 case, ruling that police improperly arrested a man because they entered his home illegally. Incredibly, the Indiana Supreme Court last week decided this U.S. Supreme Court ruling – along with centuries of case law – no longer applies in the Hoosier state because it is, essentially, passé.

The Indiana court ruled 3-2 that Hoosiers have no right to resist the unlawful entry of police into their homes.

“The English common-law right to resist unlawful police action existed for over three hundred years, and some scholars trace its origin to the Magna Carta in 1215,” wrote Justice Steven David – the newest justice, appointed by Gov. Mitch Daniels. “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.”

The court ruled that the centuries-old standard no longer applies because if police wrongly enter a home, residents can sue them and, unlike hundreds of years ago, get quick bail, have a quick court date and not be tortured in jail.

“(T)he right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law,” the court ruled, though no written statute was changed and no precedent-setting court ruling provided a basis for the decision, other than the court’s own.

In fact, the U.S. Supreme Court ruled just this week in the case of a Kentucky man whom police arrested after bursting into his apartment without a warrant. Police said they smelled marijuana and thought the man was trying to destroy incriminating evidence, and the case revolved around the circumstances of when police may enter a home without a warrant.

Justice Samuel Alito – who wrote the opinion – suggested residents are not required to allow police to come in. “Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame,” Alito wrote – suggesting a constitutional right not to allow police entry.

Except, now, in Indiana.

One of the few cases cited in last week’s flimsy eight-page ruling in Indiana was a 1985 Indiana Court of Appeals case, in which that court “ultimately focused on the heightened expectation of privacy in one’s home and recognized a right to resist an unlawful entry into a home by a police officer.” The court did not attempt to explain exactly what happened in the past 26 years to gut that ruling.

Last week’s case involved a Vanderburgh County man who was arguing with his wife while moving out of their apartment. The man, Richard Barnes, yelled at police, who followed him back into his apartment. Barnes told police they could not enter, and he struggled with an officer who ignored him. Barnes’ lawyers wanted the jury to be told that Barnes had a right to resist the entry by officers.

In his dissent, Justice Brent Dickson took issue with the court’s overly broad ruling. Police may well have had a right to enter in this case because they were investigating a report of domestic violence. The court need not have thrown out any attempt ever to resist an unlawful entry.

Justice Robert Rucker also dissented, writing “it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection. … In my view the majority sweeps with far too broad a brush by 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.”

No one wants Hoosiers to believe they have a right to fight police officers, even those who enter a home without warrant or cause. But neither should the courts tell residents they have no right to refuse unlawful entry into their homes.

While changing law, the justices should have consulted the Indiana constitution:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated. …”