What's 800 (OK, 796) Years Among Friends?

You know when, as a judge, you might want to think twice about a decision you’re about to make? How about when that ruling can lead to a news story that can legitimately open with the words, “Overturning a common law dating back to the English Magna Carta of 1215…”? But that’s precisely how Dan Carden of the Northwest Indiana Times (and nwi.com) began his story about the most recent action of the Indiana Supreme Court, which ruled that citizens do not have the right to resist unlawful police entry into their homes.

The case in question involved a domestic dispute which took place outside a couple’s apartment. As Carden tells it, “When the couple went back inside their apartment, the husband told police they were not needed and blocked the doorway so they could not enter. When an officer entered anyway, the husband shoved the officer against a wall. A second officer then used a stun gun on the husband and arrested him.”

I’m not going to pretend to know more about the law than a bunch of judges, but I do have a reasonable layman’s understanding of the Bill of Rights, and I’ve spent a fair amount of time looking at the 4th Amendment in particular. I also remember basic history courses, and that one of the most significant provisions of the Magna Carta was the right to resist the unwarranted (literally!) intrusion of the state and its minions into a private residence. And now, in Indiana, at least, that most basic right of citizenship is being abandoned in the name of utilitarian cleanliness: someone might get hurt, we can’t “beat the hell out of the officer” (who, exactly, was claiming that right?), the citizen can still sue, it’s against “public policy” (whatever that means), and is “incompatible with modern Fourth Amendment jurisprudence” (Bullshit.).

OK. There will be readers of this piece who know the law better than I do, and I’m asking them to correct me if I’m wrong in any of this. But it seems to me that if we acknowledge that the police entry was unlawful, then the officer(s) in question lacked a warrant, consent, or exigent circumstances. That means that the policeman has, legally, ceased to be functioning as a policeman, and his actions become those of a private citizen. In pushing his way past someone blocking the door, he has committed assault and trespassing—maybe they’re called something different, but that’s the idea.

These are criminal acts, not (only) the stuff of civil suits, regardless of what Justice Steven David says. I don’t want to sue the cop tomorrow; I want him the hell out of my house today, and if his entry is unlawful, then it is he, not (or at least more than) I, who is escalating the potential of violence. If the government wants to reduce that threat, it can provide better training, tougher sanctions, or indeed whatever else it might take to keep that policeman out of a private residence, without cause, to begin with. Casually dismissing the basic rights of the individual as inconvenient doesn’t seem to be the way to go.

It may be that in the particular case under question that the ruling is the correct one. We don’t know the exact meaning of “shoved,” for example (there’s certainly a possibility that the apartment-dweller did something criminal, too), and the two justices voting in the minority both said they’d have supported the decision had it been narrower in scope: limiting the permission to domestic violence situations, for example. Of course, then there would be a legitimate claim of exigent circumstances, and the entry wouldn’t be unlawful to begin with.

I have to agree with both dissenting justices:

Robert Rucker: “…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.”

Brent Dickson: “The wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad.”

This is not, by the way, a partisan matter: there are both Republican and Democratic appointees on both sides of the issue (at least if you call Evan Bayh a Democrat, which of course technically he was, even if he didn’t govern like one). Of course, this is a case in which left/right taxonomies are less useful than distinctions between the authoritarian and the libertarian. It will be interesting to see where the Tea Party comes down on this one: their rhetoric suggests that this might be the sort of case that propagates strange bedfellows, much like the Kelo case at the national level a few years ago. We shall see, as I strongly suspect the SCOTUS will be weighing in on this one.

In the meantime, I don’t anticipate that jackbooted thugs will crash through my door without any reasonable cause in the foreseeable future. But it seems to me that eight centuries of precedent ought to mean a little more than it just did in Indianapolis.