May 17, 2011

About that 4th amendment...

1. There's the new Supreme Court case, Kentucky v. King, described here by Orin Kerr, who thinks Justice Alito "did a pretty sharp job":
In this case, officers entered an apartment without a warrant after smelling marijuana inside, knocking, and hearing noises inside. The Kentucky Supreme Court had assumed that the police had exigent circumstances in those facts, but then concluded that the police had created the exiegncy [sic] — and therefore could not rely on it to make a warrantless entry — by in effect inducing King inside to react to the police outside and react in a way that created the exigency. In its opinion today, the Supreme Court disagreed...
2. There's what the Indiana Supreme Court said in Barnes v. State, and, again I'm relying on the wonder that is Orin Kerr:
In this case, the officer had come to the home in response to a domestic violence call.... The officers asked if they could enter the home, and the defendant’s wife pleaded with the defendant to let them enter. The defendant refused. The police then entered anyway, and the defendant “shoved [an officer] against the wall.” The officers then tazed the defendant and arrested him.

The defendant was charged with misdemeanor battery against a police officer, among other things. At trial, he wanted to argue to the jury that it was lawful to shove the officer because he had a citizen’s right to reasonably resist unlawful entry into his home. 
The court said there was no such right, noting "a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence."

I'm not ready to take a position on either of these cases, but I wanted to put them up for discussion. I'm about to record a Bloggingheads episode, and we may talk about these, but, then again, maybe not.

147 comments:

Scott M said...

So, what's the standard of behavior for the cops going forward? Is the reasonable cause rule of thumb the same right now for car searches as well as homes? I was under the impression home searches were far more serious and harder to secure. This would seem to reduce a home to the level of a car.

Leland said...

I think other than both being 4th Amendment issue; the only comparison is the difference between a narrow ruling and broad ruling.

pbAndj said...

"I'm not ready to take a position on either of these cases,"


Of course not. It takes time to restart the mind after a state imposed blackout.

Hopefully, Althouse will recover soon.

So sad.


BTW, I hope this bloggingheads isn't occurring while Althouse is "on the clock," i.e. post-furlough.

Pogo said...

"a right to resist an unlawful police entry into a home is against public policy"

If the President does it, it's not against the law.

If the Police do it, it's not against the law.

Russ said...

Don't both cases provide enough 'probable cause' that they aren't 'unlawful police entry'?

Sofa King said...

Don't both cases provide enough 'probable cause' that they aren't 'unlawful police entry'?

Police are at least theoretically *also* required to have a warrant that is based upon the probably cause.

MaxedOutMama said...

Well, what exactly remains of the Fourth Amendment?

Functionally, it would seem that police no longer face the necessity to get a search warrant. They just claim they heard something and bust in.

What reason would the police have for even doing this unless they intended to break in? Knocking up a suspected drug dealer would have alerted the suspect regardless.

The only rules that have legal effects are rules that impose externally verifiable rules upon the police. This should be of particular concern to everyone, given the habit of SWAT entries and increasing injury to the innocent in drug raids already.

edutcher said...

Whatever else it might be, the IN case is another nail Daniels' aspirations in the eyes of a lot of Conservatives and Libertarians.

Resisting an "unlawful police entry" may get you killed in real life, but there is a lot of outrage over the idea he would appoint a judge who would condone something like that.

Spartacus said...

I think Indiana is a "castle law" state. If so, the ISC seems to have created quite a conflict.

Police: We have the right to enter w/o a warrant or permission", homeowner: "I have the right to shoot and if necessary kill intruders".

tim maguire said...

At a glance, I think the SC is right on Barnes on a number of levels (no right to resist police, reasonable suspicion based on domestic violence report).

Kentucky, on the other hand, is a disaster. As a practical matter, it guts 4th Amendment protections. Warrants are no longer needed, it's enough to knock, wait a moment and bust in. Police have broad freedom to fill in any blanks later.

Warrants are already quick and easy to get (too easy, IMO), so there is no need to give police what is in reality unlimited entry powers.

Eric Muller said...

Is this where we get to trash Orin Kerr?

Russ said...

Police are at least theoretically *also* required to have a warrant that is based upon the probably cause.
I can see that in the first case(maybe), but the second? The wife was begging for the police to be let in on a domestic disturbance call.

What if instead of pot smoke, they smelled gun smoke. Do they STILL need to get a warrant? If not, what's the difference? What about somebody screaming? Again, the difference?

The only rules that have legal effects are rules that impose externally verifiable rules upon the police. This should be of particular concern to everyone, given the habit of SWAT entries and increasing injury to the innocent in drug raids already.
So the external verifier in this case would be a judge who makes a decision based on...what the cop says.

And the SWAT situation is entirely different, because none of those are warrantless. They're mistakes that having the warrant system in place didn't resolve.

Richard Dolan said...

Kentucky v. Kings is completely sensible. It just involved the scope of an exception to the 'exigent circumstances' rule, allowing warrantless entries to prevent the destruction of evidence when the time it would take to get a warrant would defeat the purpose. The lower court applied a 'but for' test -- no exigent circumstances if the exigency would not have existed but for police conduct. Here the police conduct was knocking on the door and identifying themselves as the cops. The SCOTUS rejected that rule, and held that exigent circumstances exist in these circumstances except where the exigency is created by unlawful police conduct. Nothing wrong with what the cops did -- after all, it's a free country for cops too, and they can knock on a door just like anyone else. Makes sense to me.

Barnes v. State is more interesting. The court split 4-3, and it involved an old common law rule, going back centuries, rooted in the idea that every man's home is his castle, and even the king must ask permission to enter. The common law rule allowed a person to defend his 'castle' by refusing entry even to the king's agents, and to use force if necessary to exclude them. The majority held that times have changed -- today their are tort remedies and other ways to vindicate one's rights in his 'castle,' and that the danger of harm to both cops and citizens in sanctioning the use of force to keep cops from entering was too high. The dissent saw no reason to change the rule, and would have left any innovating to the legislature. I think the majority has the better of the argument, essentially for the prudential reasons they gave. The result would be more palatable if citizens had a way to control police conduct that is most problematic -- semi-military SWAT raids in drug cases, where there are too many instances of bad tips or just wrong addresses. It is the ancient problem of having someone to police the police. Politicians believe that taking on that role is likely to lead to a short career, and so there is no other institution capable of doing it besidesthe courts. Unfortunately, the tools available to the judiciary are not really up to the task.

Shanna said...

The wife was begging for the police to be let in on a domestic disturbance call.

Do the cops have to get permission from everyone in the house to enter?

If the wife told him to come in after having called on domestic violence charges, were they supposed to wait and potentially let something happen to the wife?

BT said...

It looks to me like more of our rights are being pissed away thanks to the war on drugs.

Pastafarian said...

I'm with Richard Dolan and diametrically opposed to tim maguire: The Kentucky ruling is OK, but the sweeping statement from the Indiana case:

"...a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence..."

That's just absurd.

bagoh20 said...

I don't know about these cases, but I believe we need to do something about armed police assaults on citizens when no real danger is likely. Police are routinely assaulting homes and businesses fully armed with guns drawn and combat mentalities up and running when executing search warrants suspecting nonviolent crimes or even simple code violations. It's done to enforce everything now from marijuana laws to minor food regulations.

The risks and actual damage done certain as well as the disrespect for citizens in these raids is un-American and incompatible with a nation of our principles, and it's getting worse. Every time I see it I'm angered and embarrassed. Officials should be held personally liable for injuries or deaths resulting from using such force when unwarranted, and we should have laws preventing it.

Fred4Pres said...

While I recognize police cannot be completely hamstrung, and there are situtations where they have to act, getting a warrant is typically not that difficult. It requires a telephone call to the judge or magistrate on duty.

The 4th Amendment means something--or it used to mean something. Busting in doors without a warrant is not somethign we should be encouraging. This is just the final nail in the 4th amendment's coffin. And while I do not always agree with Ruth Bader Ginsberg, I agree with her dissent on the SCOTUS case. And I am curious what Daniels has to say about his judicial appointment's decision.

Fred4Pres said...

Daniels would hardly be the first GOP executive disappointed with a judicial pick--I am just curious if he is even disappointed.

MadisonMan said...

I think Ky vs. King is the wrong decision. The threshold to enter one's home must be very very high, and "hearing things" isn't.

Moose said...

Well, if the wife asked the officers to come in, then it wasn't an unlawful entry, was it?

Dose of Sanity said...

Interesting case. The public policy argument that is discussed here (and on the comments) regarding resisting the police makes sense, assuming the officers are uniformed. It makes sense for a brightline rule not to resist them, but instead to seek your rememdy with the courts if the entrance was unlawful. (Does this make me a bad liberal to say so?)

As for entry based on circumstances created by the police, that seems to be a strange standard. Why shield destruction of evidence IN PARTICULAR. I guess I just don't understand the reasoning.

Robert Cook said...

I'm not a lawyer, but as a citizen, I perceive that my 4th Amendment protections have been effectively erased.

Christopher in MA said...

bagoh said. . .

"I believe we need to do something about armed police assaults on citizens when no real danger is likely."

Have you heard about the case of Jose Guerena in Arizona? Something very suspicious going on there in regards to a Sheriff Dupnik (you recall, the fool who blamed the Tea Party for Gabby Gifford's shooting) SWAT team assault gone wrong, leaving former Marine and Iraq veteran Guerena dead.

Check out today's http://coldfury.com for the details.

LawGirl said...

From the opinion: "We believe . . . that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence."

Very, very bad precedent.

In this case, it sounds as though the police may have had exigent circumstances, so it was not necessary for the court to "go there." (The facts set forth in the opinion indicate that the wife was consenting to police entry in a potential domestic violence situation and that the husband was outside, where the police were, but went inside - where the wife was.)

But, the court did go there, using language that further erodes the Fourth Amendment, which has suffered many hits lately. My hope is that it will cause those of us who champion the First and Second Amendments to realize that there are other Amendments that are equally important to our liberty.

rdkraus said...

For the, oh 75-80%, of you who have smoked pot, think about how dangerous it is. I mean, you might get the munchies, or turn up your stereo too loud, or giggle too much. I mean anything like that might happen.

In the vast WAR AGAINST GIGGLING TOO MUCH, we've perverted the real privacy rights (not abortion) we're supposed to have. You've got the police crouched outside your house, with no warrant, no probable cause, and they're fully armed, and you take a piss, and here they come. Alot of really bad things could happen.

Couldn't they just yell, "Turn down that stereo damn it," like my Dad used to.

Sure flushing a lot of freedom away to protect ... us? ... from giggling.

Robert Cook said...

If the police do not have a warrant or prior suspicion that a crime has been committed, how can they determine that "noises" they hear from inside a residence are indicative of "destruction of evidence?"

Moreover, this gives leeway to police ossifers (sic) to break into any dwelling at whim and simply declare later that they heard "noises to indicate evidence was being destroyed."

I mean, we all know no cops have ever acted improperly or violated the law or citizens' rights, but, it could happen, y'know?

MarkW said...

The SCOTUS rejected that rule, and held that exigent circumstances exist in these circumstances except where the exigency is created by unlawful police conduct.

But that's crazy. No, it's not illegal for cops to bang on the door and yell 'Police!', but they shouldn't be able to use that as a lawful exigency ("We have to break down the door without a warrant!" "Why?" "Because we banged on the door and yelled 'Police', so now they know we're here, so we have to bust in before they flush the evidence"). So cops create an exigency by announcing themselves and then use that self-created exigency to justify a warrant-less search. If they can do this, why would they ever need a warrant? What a travesty.

Fred4Pres said...

Guest post at the Agitator.

tim maguire said...

Pastafarian, have you and Richard Dolan thought about the implications of giving police nearly unlimited rights to burst into people's homes AND giving people the right to violently resist unlawful entry?

And who determines whether the entry is unlawful? Especially in light of Kentucky, which essentially erases the concept of unlawful entry?

Seriously, that's no way to run a country.

Fred4Pres said...

Do you realize you have more home privacy rights in Saudi Arabia than you do here, by far.

Now granted, I am not saying honor killings, domestic violence or other abuses are a good thing, but the police are loath to invade someone's home in Saudi Arabia.

LawGirl said...
This comment has been removed by the author.
LawGirl said...

Tim said, "At a glance, I think the SC is right on Barnes on a number of levels (no right to resist police, reasonable suspicion based on domestic violence report)."

The outcome may have been right under the facts of this case, but the reasoning they used to get there is absurd. And it's the reasoning that will be applied in future cases with slightly different facts. If the portion I quoted above is applied in other cases, it will be a disaster for the Fourth Amendment.

Bryan C said...

"a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence"

So, "public policy" (whatever that is) demands a society where one's rights are defined according to the safety and convenience of law enforcement agencies.

That's what they call a police state, isn't it?

w/v eptivab - the new implantable option for improved female arousal, from Astra-Zeneca.

rdkraus said...

Hey, could one of you smart guys point me to the Constitutional provision that governs "public policy?" Is that one of the Amendments? Must be later than the fourth one, no?

Calypso Facto said...

That flushing noise is just the sound of 4th Amendment protections going down the drain....

Subjugation to the police state at the whim of on-scene officers: What could possibly go wrong? Cops are now free to enter your home whenever they think (or can claim) they've heard something untoward going on, and once they're inside you have no right to confront them.

rdkraus said...

Is this "public policy" thing more like a pnumbra or an emanation?

Isn't this what Scalia would call judicial activism, ya know, just making stuff up?

Richard Dolan said...

"And who determines whether the entry is unlawful? Especially in light of Kentucky, which essentially erases the concept of unlawful entry?"

The 'who determines' is clear enough: at the scene, it's the cops, then later the prosecutor (who decides whether to defend the police action), and ultimately the courts. Cops who believe they have the right to enter to enforce the law are not interested in a discussion, and won't put up with one. Making it turn on a disputed legal proposition (is forced entry proper in these circumstances?) where there is no one present to resolve it, and the situation is such that the cops have already decided that a forced entry is needed, is an invitation to someone's getting hurt (probably not the cops either). That was one of the prudential reasons for the majority's decision.

Neither Barnes nor Kentucky v. Kings has "erase[d] the concept of unlawful entry." Barnes is premised on the idea that the legality of the entry cannot be ruled upon at the scene, but must come later in the process. It takes a realistic view of addressing the legality of the entry and notes, quite sensibly in my view, that it cannot happen at the scene. The Kentucky case involved an exception to the 4th Amendment already well settled in law, and addressed only when the exception applied.

Sigivald said...

Maxed: By that logic, warrants were never "required"* - because cops could always lie about an exigent circumstance.

(* In the early days of the Republic they weren't; a warrant immunized the officer against civil torts for an unlawful search.

Now with sovereign immunity, another mechanism had to be invented, which was the novel requirement of a warrant for every search.)

(Then again, in case 2 in the post, given that someone present and with probable authority over the property was "begging [him] to let them in", I'd read that as permission.

And a real exigent circumstance, given the context of the domestic abuse call.)

Oclarki said...

The militarization of the police and the attitudes that they are entitled to use the maximium amount of force in the face of the least provocation is oompletely out of hand. I was raised to respect police officers, but the last decade I have seen countless examples of police brutality and lack of respect for the constitution.

I know conservatives are supposed to be the party of law and order, but enough already. What about liberty? What about reigning in the worst aspects of police mentality that pit the citizens as enemies of the state?

LawGirl said...

Oclarki said:
I know conservatives are supposed to be the party of law and order, but enough already. What about liberty? What about reigning in the worst aspects of police mentality that pit the citizens as enemies of the state?


I think a lot of us realize that the type of "law and order" depicited in your post (where police can run rough-shod over our liberty in the interest of getting the "bad guy") is anathema to constitutional principles.

Like frogs in water slowly brought to a boil, many people have gone along with various attacks on our freedom, imposed in the supposed interest of safety. But, many of us have felt the heat at some point and at least attempted to jump from the kettle.

It was the grope-n-porn at the TSA check point that opened my eyes to the fact that our constitutional rights have been seriously undermined in recent years (that we would let thugs molest us and our children in the "interest of aviation security" is a sad commentary on how compliant we have become). For others, these cases may be the eye-opener.

Almost Ali said...

There's a reason for the 2nd Amendment, which in these cases takes precedence over the 4th Amendment, lately the state's one-size-fits-all grab-bag.

And while clever scholars marvel at the creativity of Alito in embracing the 4th, it was an appearance or a personal attribute that offended the high court above and beyond all amendments.

c71ff said...

Can someone please explain whether IN is the first state to rule against citizen's right to resist unlawful entry by police? Is this already a fact of life in other states?

Hagar said...

I would think that having "the right" to use violence on a person you know to be a police officer because he is there (in your opinion) as a result of unlawful entry would also mean that police officers would even more expect such resistance and take counter-measures, and so it escalates.

I do think it more reasonable that you have the right to inform the officer you believe he is in your house unlawfully, and you intend to lodge a complaint and sue the department for damages if he does not promptly leave the premises, etc. and so forth, depending on the circumstances.

Alex Ignatiev said...

I think that these cases are distinguishable from one another, and I think that the Kentucky Supreme Court was wrong that the cops had created the exigency, in the first case.

Mississippi is one of the few and most extreme defenders of the right to resist unlawful entry by the police, and I've actually tried two cases, one criminal and one civil, on this very issue. The criminal case of resisting arrest got dismissed; we lost the tort claims act/1983 case, because the Court found the officer's actions in handcuffing my disabled client and placing him on the ground to be objectively reasonable.

Lamar63 said...

They are both bad decisions. Both decisions are way too broad for the facts at hand. The courts could have easily ruled the Barnes entry was justified. And more scary is the standard the SCOTUS allowed for exigent circumstance.

"Cobb said that “[a]s soon as [the officers]started banging on the door,” they “could hear peopleinside moving,” and “[i]t sounded as [though] things werebeing moved inside the apartment.” Id., at 24."

That was all the evidence of "immediate destruction of evidence". So yes, the 4th Amend has been gutted.

wv desiestd. Desie has some splainin' to do!

Mick said...

So does that give the homeowner the right to shoot the cops that come bursting through the door with no warrant?

Almost Ali said...

Everyday it's something:

A Tacoma seventh grader faced federal interrogation at school for what he posted on his Facebook page. His mom said it all happened without her knowledge or permission.

No doubt they'll find the applicable 4th Amendment issue here. Too.

Meanwhile, the concerned mother should be thankful her son wasn't tased, thrown to the floor, and stomped beyond recognition.

cokaygne said...

Excuse me for asking a question that will seem dumb to lawyers. The Kentucky Supreme Court said that the cops violated this guy's rights. Is that not the end of it? Can the cops or prosecutors of a state appeal to the SCOTUS if they don't like a decision by their own state court? Does that mean that state constitutions are just toilet paper?

J said...

Mere formality.

In the field, cops don't let the
4th interfere. They know the black robe gang doesn't give a f**K about it either--95+% of 4th Amendment cases/appeals are tossed. The few times it might matter is when some bourgeois, soccer-mommy type has her home invaded, or one of her stoner kids has pot gear or something.

Justice thus might be said to be proportional to vaginal hygiene.

Revenant said...

Every year we find new reasons to limit the 4th amendment for the sake of the War on Drugs.

It is a damned shame, really.

MaxedOutMama said...

Sigivald - "By that logic, warrants were never "required"* - because cops could always lie about an exigent circumstance."

Yes, it is inevitable that cops do lie, but this case would seem to remove any requirement to lie meaningfully or even detectably.

I mean, suppose the cops decided I might have been a drug dealer and come knocking on my door firmly this morning. They might have caught me in my early morning exercise routine, heard me groan as I got off the floor, heard me shove the weights aside, etc, and come busting in with about as much justification as this case allowed.

These "exigent circumstances" are a matter of interpretation; it's a long way from seeing or hearing signs of an assault. It's a justification that can never be disproved.

I do think the Fourth's protections against warrantless searches are being gutted.

I'll ask again - if the cops did not indeed to break in, why did they ever knock on this door? It's not what you would do if you suspected someone was dealing drugs. You might watch them. You might ask questions of the neighbors. You might investigate them. The one thing you would never do is go knock on their door and then say when they came to the door "Gee, can we come in and search?"

This is BS, buddy. I'm not anti-cop. I don't do drugs myself. I believe most illegal drugs are quite harmful.

It's just that I think unrestrained police searches are EVEN MORE HARMFUL.

Look, cops aren't saints. You've got to have police officers. Some will be heroes. Most will be honorable people doing a very necessary, trying and somewhat dangerous job well. Some will be crooks. Some will be self-serving jerks who will lie and cheat to cover their own bad behavior.

It is precisely because we must have police that we should also have distinct limits on their ability to do this sort of thing.

Synova said...

Waitaminute...

The woman said to the police "please come in?"

Also, can't police enter a home without a warrant if they hear something that makes them think someone is in danger?

And the judges decide to make a blanket ruling that no one has a right to privacy in their home?

Alex said...

So basically the Vic Mackey school of policing wins.

Alex said...

Don't tase me bro. Just sayin'.

singleton said...

Dor Barns the wife wanted them in so their entry so it was lawful

Methadras said...

The 4th amendment has been gutted. What else is there to say? It only is dovetailed with the continual loss of property rights and the ability to defend your property and yourself against illegal searches and seizures without any explanation of why you are being searched only to be told that you have to go to court while the law gets to trash me beforehand and I have to defend myself on the back end because they dragged me into it unlawfully and without a warrant.

Then if I resist, I'm obstructing justice or a peace officer. If I try to defend myself against the threat of being killed or seriously hurt by a police officer, then I'm either killed outright because their lives were threatened even though they show up in force or I'm charged with assault on an officer. There is very little recourse outside of spending a lot of money to defend it and even if found not guilty or having it thrown out, there is no punitive repercussions against the department or specific officers.

I'm not anti-police at all, but I'd expect there to be some level of proactivity instead of reactionary behavior when either engaging in a stop or when trying to enter someones home.

I'm not talking about me, I'm just using a first person narrative to explain my position.

Robert Cook said...

Despite our sniveling about our civil rights being further raped, this is the Supremes, baby! It's a done deal...ain't nobody to appeal to above them.

The 4th amendment is dead.

The American police state has been growing incrementally for some time, but now the damn has burst and we will see a more rapid and overt imposition of state power over us.

Alex said...

The American police state has been growing incrementally for some time, but now the damn has burst and we will see a more rapid and overt imposition of state power over us.

So Cook - when the police come a knockin' on your door will you obey?

J said...

"a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence."

Rather eloquent Orwellian Doublespeak;ie, cops can unlawfully enter your house at will, and if you protest, you're a subversive ...and on your way to the pen.

Badger said...

This case reminds me of the Welsh v. Wisconsin case that Althouse’s colleague, Gordon Baldwin, argued and won at the Supreme Court in 1984. I was at UW-Law at the time and Prof. Baldwin spoke to our class about the case. He was a great lawyer. In Welsh, the police followed a suspected drunk driver home and entered his house without a warrant. The Court ruled that exigent circumstances did not justify the warrantless arrest because drunk driving was a non-jailable civil offense. The dissent in the Kentucky case cited Welsh. But I guess that smoking marijuana in your home is a more serious offense than driving while intoxicated and therefore justifies a warrantless entry.

Revenant said...

Rather eloquent Orwellian Doublespeak;ie, cops can unlawfully enter your house at will, and if you protest, you're a subversive ...and on your way to the pen.

It didn't sound Orwellian at all. It comes right out and says what it means: "it is not in the interests of the State for citizens to resist unlawful behavior by the State".

That statement is both (a) true and (b) irrelevant -- or at least it WOULD be irrelevant, if we were still a nation where the government was subject to the people instead of vice-versa. But that horse left the barn early last century.

Shanna said...

A Tacoma seventh grader faced federal interrogation at school for what he posted on his Facebook page. His mom said it all happened without her knowledge or permission.

I know it's nothing new, but that story is ridiculous. Why are they monitoring a 13 year old's facebook page anyway?

And it seems like stuff that is way less than what was dismissed as a threat for the govenor and meadehouse is considered quite serious when it refers to the president.

Shanna said...

The woman said to the police "please come in?"

I'm still stuck on this too, Synova. I would love to hear the explanation for why this is not considered permission to enter...

Simon said...

The overreaction to Barnes has been incredible and incredibly silly. I got in on the ground floor, reading the case on Thursday and blogging about it on Saturday. Let me add this to what I said there: Last week, the Indiana Supreme Court handed down a conservative, law-and-order decision that will protect police from physical violence by the dregs of society. It was decided over the dissent of the court's most liberal member, outraging the ACLU, the defense bar, and the liberal media.

Nor should it be forgotten that the modern conservative movement, it has apparently been forgotten, was fanned into life by the Warren Court's revolution in criminal procedure. When Nixon spoke of "strict constructionists," he meant conservative judges—which meant what? Judges "who placed law and order and traditional values ahead of the rights of criminals." Hensley, The Rehnquist Court 56 (2006).

How amazing, then, how fundamentally at odds with the decades-old aims of the conservative movement, the hostile reaction to Barnes v. Indiana! Every election, conservatives insist that we want "strict constructionist" judges, by which we mean conservative judges. We tout Scalia and Rehnquist as models. Apparently it has been forgotten what that means, because if you don't like Barnes, your ideal justices aren't Scalia or Rehnquist but Brennan and Ginsburg. Because if you hate this conservative decision, you're going to hate what you get from conservative judges. Brennan would have joined Rucker's dissent, but it's hard to imagine that Rehnquist ever would.

Simon said...
This comment has been removed by the author.
Simon said...

Shanna said...
"The woman said to the police "please come in?" I'm still stuck on this too, Synova. I would love to hear the explanation for why this is not considered permission to enter..."

The record indicates that she was urging her husband to let them in, not directing permission to the cops. Also, even if the woman had said they could come in, Georgia v. Randolph—a horrible mistake the Supreme Court made a few years ago that is going to kill and injure women in domestic violence situations—says that Mr. Barnes' refusal of permission trumps her granting of it.

Palladian said...

"Last week, the Indiana Supreme Court handed down a conservative, law-and-order decision that will protect police from physical violence by the dregs of society."

Ah, yes, it's just those "dregs of society" who will be affected, so who really cares?

Until someone decides that you're one of the dregs. But hey, that's the price we pay for "law and order"!

Shanna said...

The record indicates that she was urging her husband to let them in, not directing permission to the cops.

Ah. So if she said "come on in cops" then there would have been no case?

Simon said...

Shanna, I added some more to my comment above while you were replying, which addresses that point.

Robert Cook said...

"Last week, the Indiana Supreme Court handed down a conservative, law-and-order decision that will protect police from physical violence...."

Our Constitution is meant to protect us from state violence directed at us. Police work is stressful, and occasionally dangerous, but far less so than many other occupations. It is more likely that a citizen will be harmed by the police than vice versa, and our laws should be written in recognition of this, and in accordance with the Constitution.

But, it's moot now.

Simon said...

Palladian said...
"Ah, yes, it's just those "dregs of society" who will be affected, so who really cares? Until someone decides that you're one of the dregs. But hey, that's the price we pay for "law and order"!"

There was a time when conservatives had little sympathy or empathy for people affected by criminal process, because we were ordinary law-abiding people, and we didn't come into contact with the sharp end of the law, and scarcely imagine how any ordinary law-abiding person would. Those assumptions were the bedrock of Nixon's 1968 campaign, which placed law and order—and the license handed to criminals by activist warren court judges—at the heart of the conservative movement's agenda. Putting ordinary, decent people who had nothing to fear from the police ahead of people like Mr. Miranda, demanding that the guilty should never go free just because the constable blundered, was a conservative position. We were ordinary, decent, law-abiding people, and so we empathized with the police, not the criminals.

What has changed? I had thought nothing. So you can imagine my bewilderment at a few conservatives and tea party types today taking umbrage at Barnes, projecting themselves into the case not as a battered wife, or as a cop (or the relative of a cop) executing a warrant, but as... What?

I will tell you frankly why I think many on the right have reacted so wildly at odds to what one would think the conservative movement's reaction would be. It's Obama. There are people out there, mainly tea party types, who have simply lost their minds since this President was elected; they see tyranny and socialism at every step, behind every pillar, under every rock. They are waiting for the black helicopters to arrive any second now, when federal sardaukar will burst into their homes to liberate their guns and their religion from their clutches. And they are so pathologically afraid, so utterly immersed in the paradigm that sees even S.679 as encroaching tyranny, that they see ALL news about government power as being about THEM and WHAT HAPPENS WHEN THE GUMMINT COMES FOR ME.

I told you this was unhealthy. I warned you this hair trigger paranoia was a threat to the integrity of the conservative movement.

When I say the critical reaction of some conservatives is insane, then, I want you to take my full meaning. It is literally insane. It is a wild deviation from everything the conservative movement has sought to do for decades, motivated, it would appear, by wild-eyed paranoia about the current President.

Shanna said...

Also, even if the woman had said they could come in, Georgia v. Randolph—a horrible mistake the Supreme Court made a few years ago that is going to kill and injure women in domestic violence situations—says that Mr. Barnes' refusal of permission trumps her granting of it.

Thanks for the clarification. Also, seriously? That is kind of insane.

Simon said...

Robert Cook said...
"Police work is stressful, and occasionally dangerous, but far less so than many other occupations. It is more likely that a citizen will be harmed by the police than vice versa, and our laws should be written in recognition of this, and in accordance with the Constitution.

But, it's moot now.
"

Robert, you have good company in failing to distinguish between rights and remedies, but it's still erroneous to do so. To illustrate, take Hudson v. Michigan, for example. The police executed a warrant on Hudson's house; Michigan later conceded that the entry was illegal because the police waited only three seconds rather than the fifteen to twenty seconds OK'd by US v. Banks. (Please, please do not miss the note of scorn in my voice as I recite the utterly ludicrous doctrinal depths to which the Fourth Amendment reaches.) The Justices disagreed on whether the evidence should have been suppressed, but not one of them believed that the defendant was entitled to make a snap decision on the legality of the entry and open fire on the police if he concluded it was illegal. He certainly had the capacity: The police found him inside, sitting in a chair with a gun. And the people attacking Barnes must conclude that Hudson had every right to pick up that gun and kill himsef a cop or two when they executed the concededly illegal entry.

Now, I understand why liberals like you would be all for that result. What I can't understand is why the tea party would break with a decades-old purpose of the conservative movement to sign on to a cop killer's charter, for no better reasons than fear of Obama and because they were hoodwinked about the content of the decision by the liberal media.

LawGirl said...

Just because you're paranoid doesn't mean you're not being followed.

In all seriousness, though, it is not paranoid to see that our government has changed since the 70s. Almost nothing is out of the reach of the federal government anymore and it doesn't bother to follow its own rules (debt ceiling? What debt ceiling?), so it is well within reason to distrust it and to attempt to rein in its supposed authority (peace officers are supposed to serve the people, not the other way around).

Scott M said...

What I can't understand is why the tea party would break with a decades-old purpose of the conservative movement to sign on to a cop killer's charter, for no better reasons than fear of Obama and because they were hoodwinked about the content of the decision by the liberal media.

You're missing the thrust of the reaction, I think, Simon. If those you're wondering about had anything like my first reaction, it was without careful reading of the decision and a gleaning from the article that police can willy-nilly enter homes without warrants now. This has zero to do with the current resident at 1600 Penn Ave.

J said...
This comment has been removed by the author.
Simon said...

Shanna, it's totally insane. It represents a total failure of the court to understand the consequences of its holding for domestic violence situations. It means that absent a warrant or exigent circumstances (concededly that door is being cracked wider in cases like King), the cops' hands are tied by the abusive husband's refusal of permission to come in. Indeed, take Barnes, the Indiana case. Why were the cops there? They were responding to a domestic violence in progress 911 call from the victim. It is only in hindsight that we know Barnes' wife was okay; the cops couldn't possibly know that at the time. Yet Randolph holds that Barnes could refuse the cops entry even if his wife was begging them to come in.

Randolph was decided by the court's liberal bloc, over dissents by conservative justices who pointed out precisely these problems. That's instructive, too: It restates the point I mentioned above that if you want conservative judges, you'd better like Barnes, because if you appoint the former, you're going to get a lot more cases like the latter. Conservative opposition to Barnes is incoherent with the stated goals and standards of our own movement. Insane.

Simon said...

Shanna, it's totally insane. It represents a total failure of the court to understand the consequences of its holding for domestic violence situations. It means that absent a warrant or exigent circumstances (concededly that door is being cracked wider in cases like King), the cops' hands are tied by the abusive husband's refusal of permission to come in. Indeed, take Barnes, the Indiana case. Why were the cops there? They were responding to a domestic violence in progress 911 call from the victim. It is only in hindsight that we know Barnes' wife was okay; the cops couldn't possibly know that at the time. Yet Randolph holds that Barnes could refuse the cops entry even if his wife was begging them to come in.

Randolph was decided by the court's liberal bloc, over dissents by conservative justices who pointed out precisely these problems. That's instructive, too: It restates the point I mentioned above that if you want conservative judges, you'd better like Barnes, because if you appoint the former, you're going to get a lot more cases like the latter. Conservative opposition to Barnes is incoherent with the stated goals and standards of our own movement. Insane.

Robert Cook said...

"...it is well within reason to distrust (the government) and to attempt to rein in its supposed authority...."

This is hardly a novel circumstance...this is the raison d'etre of the Constitution!

Alex said...

A man's home is his castle. No exceptions.

Alex said...

Most people couldn't care less about abstract constitutional concepts. Everyday practical concerns are what guide them(and me). I'm all for a living Constitution as guided by current societal mores.

Simon said...

Scott M said...
"You're missing the thrust of the reaction, I think, Simon. If those you're wondering about had anything like my first reaction, it was without careful reading of the decision"

On Thursday, a liberal friend of mine posted the case to facebook and expressed total disgust with it. I love the guy, but as a rule of thumb, when he says "this decision is outrageous!" it means that the case was rightly-decided (from a conservative viewpoint). So I read the case, and concluded that sure enough, it was rightly-decided. Of course the ACLU types and the MSM were outraged—it wasn't explicitly pro-defendant!

What I wasn't in any way prepared for, and watched unfolding with absolute astonishment over the next several days, was the insane reaction of my conservative friends, who for reasons unknown and incomprehensible to me promptly switched sides and joined the defense bar.

"and a gleaning from the article that police can willy-nilly enter homes without warrants now."

The decision says no such thing. Not even close.

A "Shotgun" Gold said...

Why may one resist the unlawful entry of somebody who is not law enforcement? Because it is unlawful?

They may reason that resisting unlawful entry by the police is against public policy, but so what? It's bad public policy. And by definition the Constitution ought to prevail over public policy.

An unlawful entry --by anyone-- into my home will face more resistance than simply my lack of permission.

J said...

3:41--No. In Doublespeak fairly sinister or sadistic concepts are presented in a normal bureaucratic tone. "Ignorance is strength" or paraphrasing the legalese, "Those who resist police thugs (conducting warrantless searches) are enemies of the state." If not identical, closely related

As this case shows, the current SC always favors the police--the 4th Amendment be damned. The Founding crackers on the other hand had some idea that the law was meant to protect the rights of the accused, even those who might turn out to be guilty (better that 10 guilty go free than one innocent be wrongfully convicted, or something like that). The 4th was designed with that in mind--perhaps that's obvious to some, but a bit too subtle for a Scalia-era judicial bootlicker.

Revenant said...

the Indiana Supreme Court handed down a conservative, law-and-order decision that will protect police from physical violence by the dregs of society

My copy of the Constitution has a lot to say about protecting people from the government.

It doesn't have a word to say about the right of government agents to be "protected" from "the dregs of society".

jr565 said...

You shouldn't be able to avoid having to open your door if there is reasonable suspicion based on domestic violence report and especially if the wife is asking the cops to come in.

jr565 said...

Alex wrote:

A man's home is his castle. No exceptions.

Bullshit. If you're using your house as a meth lab, or keeping refugees in your basement you're going to sell into the slave trade, then no you don't have unlimited rights there. That's not to say that cops should be able to break down your door willy nilly, but that right is not an absolute either.
And what about the wife in this case. If she's married then isn't the house just as much hers as his? So why can't the cops come in if she says they can?

Simon said...

A "Shotgun" Gold said...
"They may reason that resisting unlawful entry by the police is against public policy, but so what? It's bad public policy. And by definition the Constitution ought to prevail over public policy."

The Constitution doesn't give you a right to resist. That's the big lie at the heart of Justice Rucker's dissent and the media's fictitious coverage of this case. The Constitution gives you rights, such as the right to be secure in your home against warrantless entry, but this case isn't ABOUT rights. It's about REMEDIES. What is your REMEDY when your rights are violated? In a nation of laws rather than men, your REMEDIES are always legal—not to return fire. The Constitution says nothing to the contrary, and what's funny is, if you read Justice Rucker's dissent, he makes literally no attempt to argue that it does. He simply asserts that the Fourth Amendment incorporates a "right to resist"—and that's it!

So let's be very clear about this: The right's tizzy about this case arises 100% from sheer ipse dixit by the most liberal member of the Indiana Supreme Court. When did the liberal media and one liberal judge constitute a sound argument for abandoning foundational principles of the conservative movement, and what's next on the chopping block?

jr565 said...

To the absolutists suggesting that your home is your castle:
What if someone gets kidnapped and is held in the kidnappers house. if the cops get a call from the victim who is stuck inside the house are the cops somehow not allowed to enter because the owner doesn't want them to?

Simon said...

Revenant said...
"My copy of the Constitution has a lot to say about protecting people from the government. ¶ It doesn't have a word to say about the right of government agents to be 'protected' from "the dregs of society"."

Nor does it have a word to say about the dregs of society getting to shoot at government agents because THEY made a split-second determination that their rights were being violated.

Sometimes the government violates your rights. Your remedy is always legal. Unless the captain has lit the "legitimate tyrannical government takeover" sign, however, it is never "the second amendment solution," or comparable macho bullshit.

Robert Cook said...

"...the people attacking Barnes must conclude that Hudson had every right to pick up that gun and kill himsef a cop or two when they executed the concededly illegal entry.

"Now, I understand why liberals like you would be all for that result."


You are mistaken if you assume I (or "liberals") encourage citizens to "kill (themselves) a cop or two," even when cops intrude illegally into a dwelling.

Revenant said...

Nor does it have a word to say about the dregs of society getting to shoot at government agents because THEY made a split-second determination that their rights were being violated.

Basic common law, Simon. When armed thugs illegally force their way into your house, you're allowed to use lethal force against them to defend yourself and your property.

The police do not have license to violate the law. When they behave criminally they are no different from any other criminals.

bgates said...

Last week, the Indiana Supreme Court handed down a conservative, law-and-order decision that will protect police from physical violence by the dregs of society, so long as the dregs closely follow state Supreme Court decisions and scrupulously follow them.

the people attacking Barnes must conclude that Hudson had every right to pick up that gun and kill himsef a cop or two when they executed the concededly illegal entry

You must be one of those "conservatives" who thinks there is no right to self-defense at all, or at least it can be abolished by any criminal clever enough to shout "police" before breaking in to a house.

Robert Cook said...

"The Constitution gives you rights, such as the right to be secure in your home against warrantless entry...."

Um, no. The Constitution does not "give" us these rights. It recognizes these rights as innnately ours, and it limits the power of the state to abrogate or do violence to those rights. The Constitution does not tell us what we may do; it tells the government what it may not do.

Alex said...

The police do not have license to violate the law. When they behave criminally they are no different from any other criminals.

Good luck with that.

Anyways I don't give a shit about these people. They're criminals anyways. Good, law-abiding citizens like myself will never get that dreaded knock at night. Really, it can't happen to me.

Alex said...

Um, no. The Constitution does not "give" us these rights. It recognizes these rights as innnately ours, and it limits the power of the state to abrogate or do violence to those rights. The Constitution does not tell us what we may do; it tells the government what it may not do.

When you live in a society, your "rights" are whatever the majority say they are at any moment in time. If you think otherwise, you're fooling yourself.

Simon said...

Robert, I'm not assuming, I'm inferring. There are two sides on Barnes, and I am on the side that says criminals don't get to shoot at cops. Your comments above suggest that are on the other side. If you'd like to cross over, feel free, but you can't have it both ways. It's as simple as this: If you're against Barnes, you're for people shooting at cops every time the police enter a home.

I am not kidding. That is the upshot. It is the logical consequence of the rule you are proposing.

And don't give me this "legal entry" red herring! It's nonsensical because it imputes post hoc knowledge into the situation. If you have a right to resist, you must decide to resist or not at the moment the police enter your house. You will not have the luxury of knowing what will happen when dozens of lawyers and judges have fully parsed every imaginable detail of the case and concluded that the search was or was not legal. You must decide right then. You must know that the police are not executing a no-knock warrant, you must know that there are no exigent circumstances, you must know any number of things that you cannot possibly know. The idea that the average criminal is capable of navigating the incredibly complex and subtle maze of Fourth Amendment law in a split second is ludicrous—far more likely, then, a fortiori given the instinct of many Americans to feel aggrieved about their rights at the drop of a hat, they will simply start shooting in any entry situation, even if it is later judged legal. That is an insane situation. It is, as I've said, a cop killer's charter.

Alex said...

It is, as I've said, a cop killer's charter.

What about any random criminal shouting "police let us in!"?

Simon said...

Robert Cook said...
"The Constitution does not 'give' us these rights. It recognizes these rights as innnately ours, and it limits the power of the state to abrogate or do violence to those rights. "

No, it doesn't. You're confusing the Constitution with a misreading of the Declaration of Independence. The Declaration of Independence recognizes that some rights are ours ex deo (not innately, but as a gift of Almighty God—how typical that you would brush over that point). But that is a far cry from the proposition that all rights are ex deo. The right to speak your mind is ex deo; the first amendment's right to speak free of government interference follows logically from it, but it is separate and is granted by the Constitution itself. Some rights are God-given, but not all. For instance, you have a right from the APA to appeal adverse agency actions, but I don't think God is too concerned about that.

a psychiatrist who learned from veterans said...

I thought Orin made a nice distinction. The problem with the Indiana case is that it totally screws up the 'man's home is his castle' doctrine. Cops can barge in really at will given the off hand reasoning in the Indiana case. Alito's reasoning in the Supreme Court case finds authorization in exigent circumstances in a reasonable way. What was interesting to me was the juxtaposition temporally in Volokh to the discussion of the killing of Yamamoto which devolved to the surprise attack on pearl harbor. In the Anglosphere, entry into a war is analogous to entry into a castle and notice of authorized intent is part of our culture.

J said...

As this thread indicates, most conservative bootlickers just depend on a a sort of "in the ballpark" criteria. One might call it macho-utilitarianism.

Since the cops are right most of the time (say 90%) then they do the right thing by definition, say the bootlickers-- and who cares about the few genuinely innocent people they happen to roll via warrantless searches, or put in prison with bogus evidence. Same sort of shallow thinking occurred during the Iraqi war when the US bombed a few hundred thousand civilians to death-- well, son, that's the price of freedom.

Revenant said...

"The police do not have license to violate the law. When they behave criminally they are no different from any other criminals."

Good luck with that.

Oh, I know the world doesn't really work that way. The powerful get to do whatever they want to the rest of us; that's how the world works.

I'm just speaking from a human rights perspective; the police certainly CAN do whatever they want to civilians. They just shouldn't be allowed to.

Simon said...

Revenant said...
"Basic common law, Simon. When armed thugs illegally force their way into your house, you're allowed to use lethal force against them to defend yourself and your property. The police do not have license to violate the law. When they behave criminally they are no different from any other criminals."

I disagree entirely. I find the entire premise that the police are like private individuals for these purposes to be mistaken. Self-defense against criminals belongs to an entirely different category to so-called "self-defense" against police acting in an official capacity. I don't see a strong parallel between recourse against private persons and recourse against the state. The incentives, consequences, and relationships are completely different.

The police represent the regularized authority of the state, even when they act mistakenly, a reasonable person's expectations of how they will be treated by officers engaged in the course of their duties are utterly different to the way in which one might view superficially similar conduct by a bunch of tattooed thugs. When the police come into your house, you know that one of two things is true: Either they are entitled to be there or they aren't, and in either case, you'll be able to have a fair hearing about it in a regularized forum, in which the legality of the entry can be decided and grievances redressed appropriately. If they prosecute you, suppression. If they don't, §1983. By contrast, a private person trying to attack you—even if it's an off-duty cop in mufti—represents no legitimate authority and represents a clear, immediate, and unredressable threat to your life and property. The two situations are utterly unalike.

Now, the weakness in what I've just said, I think, is Ex Parte Young, which could be taken to argue—in a quite different context—that when officers of the state act ultra vires, they slip off the garment of the state. I would be open to hearing an argument on that point.

Revenant said...

As this thread indicates, most conservative bootlickers just depend on a a sort of "in the ballpark" criteria. One might call it macho-utilitarianism.

Apparently there are only one or two "conservative bootlickers" here at Althouse.

I'd always heard there were more than that. :)

Simon said...

Revenant said...
"I'm just speaking from a human rights perspective; the police certainly CAN do whatever they want to civilians. They just shouldn't be allowed to."

That's an important point, because it cuts right through a lot of the critics' arguments. The critics keep arguing that this decision allows the police to do this and that. It doesn't, but let's suppose it could be said to do so. The cops can already do so. They have the brute force power to do so, as you've just acknowledged. So the question isn't "how do we stop the cops from doing this": we can't. The question is what do you do about it? Until now, I had thought that the American answer was that you erect legal standards to govern police conduct, and when it is soberly assessed after the fact that they were transgressed, you punish the officers and exclude the fruits of their misconduct. Apparently the new learning is that we grab a blunt instrument and whale on the cops.

LawGirl said...

Simon says,

When the police come into your house, you know that one of two things is true: Either they are entitled to be there or they aren't, and in either case, you'll be able to have a fair hearing about it in a regularized forum, in which the legality of the entry can be decided and grievances redressed appropriately. If they prosecute you, suppression. If they don't, §1983.


Good luck with that.

Simon said...

a psychiatrist who learned from veterans said...
"I thought Orin made a nice distinction. The problem with the Indiana case is that it totally screws up the 'man's home is his castle' doctrine. Cops can barge in really at will given the off hand reasoning in the Indiana case."

Nope. No more so than the day before it was decided. All the Indiana case says is that your remedy is suppression, §1983, and similar legal devices, not to physically attack the officers. It doesn't screw up anything. A man's home is still his castle; the same Fourth Amendment standards for legal and illegal entry apply now that applied before. This case doesn't change ANY of that. To the extent it changes anything—and I doubt that it changes much—it affirms solely that shooting at cops just because YOU think—in the heat of the moment—that your rights are being violated isn't okay.

You want to guess at what percentage of people who get arrested feel they've been hard done by? How many criminals feel that their rights were violated by a search, even if no rational person would agree? Here's a clue: look at how many of them file suppression motions. Every criminal prosecution where there's a fourth amendment motion to exclude is a case where critics of Barnes are licensing that perp to have fired on the police. That is the necessary and inescapable conclusion of their logic.

Robert Cook said...

Simon,

I just scanned your blog regarding Barnes, and I will have to read it more carefully when I have more time. I can't say I disagree with your argument overmuch on first reading. But my own reaction is to the Court's ruling in the case of "Kentucky Vs. King."

This gives police every incentive to invent excuses after the fact for unlawful entries to dwellings and no incentive at all to seek warrants or to avoid making unlawful entries.

You do speak about remedies. Certainly, it is better to seek a legal remedy than to mete out violence, for one's own safety and for the safety of others in the dwelling, if for no other reason--although that's not the only reason--but once one's home has been illegally invaded, the damage is done. To seek a legal remedy does not guarantee an outcome in one's own favor, and it places on the aggrieved citizen the financial burden attached to the seeking of legal redress. (This is not even to address the other damage that can result--and has--from illegal police entries into homes, such as extensive and costly destruction to the property or injury or death inflicted on the residents by the police. or even simply the arrest and concomitant humiliation or emotional trauma inflicted on persons inside who may be innocent of any wrongoing at all.)

We must impede rather than facilitate the power of the state or its agents to intrude upon us, as the founders well recognized.

Simon said...

LawGirl said...
"Simon says, 'When the police come into your house, you know that one of two things is true: Either they are entitled to be there or they aren't, and in either case, you'll be able to have a fair hearing about it in a regularized forum, in which the legality of the entry can be decided and grievances redressed appropriately. If they prosecute you, suppression. If they don't, §1983.' Good luck with that."

You think you'll have better luck resisting? If you'd rather take your chances getting shot, tazered, chased or bitten by dogs, and/or having a resisting arrest charge added to whatever got you in trouble in the first place, good luck with that.

Revenant said...

Self-defense against criminals belongs to an entirely different category to so-called "self-defense" against police acting in an official capacity.

How can police be acting in "an official capacity" if the law forbids them from taking the action in question? Their sole claim to "official" status is that they're acting in accordance with, and support of, the law.

Do you define "in an official capacity" to mean "anything a cop does while on the clock"? If so, might I ask what criminal activities a cop isn't allowed a free hand to engage in while in uniform? For example, can he force his way into your house AND rape your wife AND shoot you? Or just one or two of the three?

MarkD said...

That Constitution, don't worry about it. Your rights are what law enforcement says they are. If law enforcement is wrong, read the first two sentences again.

Better than a hundred innocent men are convicted than one criminal go free.

I'm glad I once lived in a free country.

Alex said...

So if I want oppress my fellow citizen, all I have to do is become a police officer. Sig Heil!

Revenant said...

One of the many problems with the "there's no problem, if the cops acted illegally the evidence will be suppressed" mentality is that it only protects actual criminals.

If you aren't doing anything illegal, there's no evidence to suppress. You gain nothing from their inability to press charges because there weren't any charges to press in the first place. The police suffer no actual penalty for having violated your rights. Oh, sure, in theory you could sue. In reality the courts are mostly staffed with people like Simon, who fetishize state power and base their rulings primarily on what's convenient for the justice system. You'll be lucky to get enough money to pay for fixing the door that got kicked in.

J said...

Better than a hundred innocent men are convicted than one criminal go free.

Not how the Founding yokels saw it--and they knew something about the old colonial-royal courts. Flip it around to get the proper version.

The only time the police should be allowed to smash in the door without a warrant would be when they know for sure that terrorism or extreme violence is going down--even then, it's usually dubious. But that doesn't stop them. The LAPD/SD drug-narco pigs bust down doors everyday southside --with their AR-15s, GPS gear, copters and/or tanks if needed--and the press/journalists don't make a sound. Nothing like watching an LASD raid on a suspected meth house--say 40 pigs vs one soon-to-be effectively dead tweeker.

jr565 said...

Do those arguing against this believe that there are any exigent circumstances that are in fact justifiable to allow cops to enter ones house?

Simon said...

Revenant said...
"How can police be acting in 'an official capacity' if the law forbids them from taking the action in question? Their sole claim to 'official' status is that they're acting in accordance with, and support of, the law."

The police are acting in an official capacity if they act in good faith pursuant to and within the scope of their duties. And the problem is that you're positing a world in which actions are clearly, plainly, and uniformly legal or illegal—a clean dichotomy which doesn't exist in the real world.

I can illustrate both points with one case: Arizona v. Evans. In Evans, the police arrested a man because their computer indicated that there was a warrant for his arrest. An otherwise-valid search was performed and turned up drugs. But Evans moved to suppress the drugs, because it turned out that the computer was wrong: there was no warrant for his arrest, and so the arrest and the search that followed from it were both illegal. Now, I think most people would agree that it would be preposterous to suggest that the arresting officer was not acting in an official capacity because it was later discovered that the warrant had been quashed. Of course he was; there was simply a mistake. And the case aptly illustrates the difficulty of the Fourth Amendment: It is not always obvious whether an action is legal or not.

Here's another example. As I said above, we know from US v. Banks that when the police wait fifteen to twenty seconds before entering pursuant to a valid warrant, they satisfy the knock-and-announce rule. So if the cop waits fourteen seconds, is the search no good? How about thirteen? What if the cop meant to wait twenty seconds but he's amped up on adrenaline and bursts in after ten? The crystalline world of legal and illegal searches presupposed by your reply is fiction. Sometimes the legality vel non of a search turns on incredibly subtle and intricate details which take expert jurists and litigators years to determine, usually dividing litigants (Hudson is a rare exception where the state agreed the entry was illegal) and often dividing courts (if the law is clear, why was there an appeal from the district court in the first place? Why was the panel divided? Why did the Supreme Court split 5-4 on the legality of the search?).

All that Barnes says is that the forum and pace for deciding these difficult questions is the legal process, not the mind of the perp over the course of half a second.

Alex said...

Nothing like watching an LASD raid on a suspected meth house--say 40 pigs vs one soon-to-be effectively dead tweeker.

Nobody I knows gives 2 shits about tweekers. They get what they have comin' is our view on the matter...

Alex said...

The only time I've ever heard of cops breaking down the door was to go after suspected drug users. I say we need to intensify the war on drugs by 20x....

J said...

5:48. Im against meth-abuse and violence, but uh, like fuck you, byatch.

Drug abuse is not terrorism, and cop lovers are like ________

Revenant said...

The police are acting in an official capacity if they act in good faith pursuant to and within the scope of their duties. And the problem is that you're positing a world in which actions are clearly, plainly, and uniformly legal or illegal—a clean dichotomy which doesn't exist in the real world.

"Ignorance of the law is no excuse -- unless you're a cop".

Simon said...

Rev, that's desultory and nonresponsive. I illustrated the point with several examples of why law isn't always clear; that quote doesn't come close to answering them.

Revenant said...

Here's a suggestion, Simon -- if it isn't clear whether it is legal or illegal to force your way into someone's house... don't force your way into their house.

Problem solved.

That's how I'm expected to act. That's how every non-cop in America is expected to act. Every non-cop in America is expected to live their lives according to the rule "if you're not sure if it is legal or not, don't do it, because if it turns out it was illegal you'll be prosecuted".

Simon said...

Revenant said...
"Here's a suggestion, Simon -- if it isn't clear whether it is legal or illegal to force your way into someone's house... don't force your way into their house.

Problem solved.
"

You are a cop. You arrive on the scene of a domestic abuse call: A woman called 9/11 and said her husband was beating her, that she was frightened. The husband answers the door; he tells you to fuck off and mind your own business. The wife is nowhere to be seen.

Is the cop acting legally by entering the premises anyway?

If you answered "I'd rather not force my way in when it's unclear what's happening here," you have failed your duty to protect and serve. The correct answer is "subdue the wife batterer and enter the house to determine the physical condition of the woman."

The "problem" is not even remotely solved by such shallow, unrealistically pristine views on how law enforcement has to operate every day. The police must often confront situations where their duty requires them to act in the face of legal ambiguity and potential error. They should do their best, but the idea that they should be hogtied and unable to help because it is possible that a court will later decide that the constable blundered is unappealing in the extreme.

And this is, as I've said, something that until four days ago, conservatives emphatically supported. I understand why ACLU types are up in arms about the decision. I even understand why libertarian purists would be; they were never realistic about the practical necessities of civilization and I don't expect them to start now. But when conservatives are declaring themselves against the result, something has gone horribly wrong.

Simon said...

And as I've said above, your argument about how non-cops act is irrelevant because I reject the assumption that the same rules govern the state in the legitimate exercise of its power, including through its instrumentalities such as the police, as govern individuals. The state can legitimately do a number of things that an individual may not. Is that not, after all, the only conceivable argument for the death penalty? Unless you accept the argument that the state can do things that would be morally impermissible to individuals, you can't even buy into the argument that there should be a death penalty, let alone prevail.

Revenant said...

Is the cop acting legally by entering the premises anyway?

No.

If you answered "I'd rather not force my way in when it's unclear what's happening here," you have failed your duty to protect and serve.

"To protect and serve" is just a motto. Police take an actual oath to uphold the law and the Constitution, and to respect the rights of *all* citizens. "Dregs of society" included.

That is their duty -- upholding the law and the Constitution. If they want to "serve" and "protect" during their spare time, good for them. But do what they swore to do first.

The correct answer is "subdue the wife batterer and enter the house to determine the physical condition of the woman."

I like how you skipped right past the whole "trial and establishment of guilt" thing and skipped straight to the use of violence against civilians in their own homes. Not only do the police in your scenario have no evidence against the guy -- they didn't even bother establishing that they are talking to the husband!

And this is, as I've said, something that until four days ago, conservatives emphatically supported.

Your variety of paleoconservative, with its omnipresent deference to power and authority, hasn't been the majority of the conservative movement for a *very* long time.

Revenant said...

And as I've said above, your argument about how non-cops act is irrelevant because I reject the assumption that the same rules govern the state in the legitimate exercise of its power

Straw man argument. We're discussing illegal activity by police, which is by definition not legitimate.

The question is whether criminal activity by police should be governed by the same rules as criminal activity by non-police. The answer, according to our Founders, was "yes".

Terrye said...

Doesn't it all depend on what lawful and unlawful is? In this in Indiana, the woman is asking for help..the police did not just show up out of nowhere, they were called to the scene. But the man apparently believed that he had the right to do what he wanted in his home and the police did not have a right to enter...well what about the woman's right to give permission to the cop to enter?

So was the entry unlawful? The police did have probable cause. I live in Indiana and today I heard a police officer talking about this and he said they still have to have probably cause.

themightypuck said...

Probable cause does not seem to be in the holdings of either of these cases. They seem to say that the police can act absent probable cause. Existing law already allows the police to act with probable cause.

Terrye said...

Revenant said "Is the cop acting legally by entering the premises anyway?

No."

So, if you want to beat your wife to death and get away with it...just make sure you do it in your house? What about her rights?

themightypuck said...

In other news the 8th circuit seems to support forcing people to remain in unions just because in this one instance the union seems necessary to end run antitrust.

Revenant said...

So, if you want to beat your wife to death and get away with it...just make sure you do it in your house?

Or the cops could do something wacky and Constitutional, like get a search warrant.

What about her rights?

Describe the steps that took you from "someone made a phone call to the police" to "the police must forcibly enter the house and subdue its occupant to protect the rights of a person they haven't even established lives there".

In the world you and Simon envision, all I have to do is call the cops and tell them you hit me and I'm afraid of you. Then the cops are free to kick in your door, subdue you, and toss the place. Evidence? Warrants? Some actual indication a crime has taken place? Those things are for wimps, not Real Conservative Men. Real Conservative Men kick ass and take names and worry about that 4th amendment stuff later, if ever.

Revenant said...

well what about the woman's right to give permission to the cop to enter?

She didn't exercise it. The Volokh link has details.

The deciding opinion also contains the useful observation that the whole "you can't forcibly resist illegal police entry" thing is not the conservative strict-constructionist shibboleth Simon would have you believe, but rather dates back to the era of rapidly expanding government power in the mid-20th century. For centuries prior to that forcibly resisting illegal police entry into your home was a recognized right under common law.

Almost Ali said...

No kidding, Dick Tracy:

ALBUQUERQUE, N.M. -- A special type of government search warrant that allows authorities to search homes without informing the owner for months is becoming more common…

Like I said, everyday it's something. Sometimes, twice a day.

Let me put it another way: The Second Amendment was not intended for squirrel hunting.

Almost Ali said...

Turkey shoot:

"The Pima County Sheriff’s Department will release no more information about the circumstances surrounding the killing of Jose Guerena during the serving of a search warrant by the department’s SWAT officers May 5 at his home.

Two weeks after the shooting the department has yet to disclose exactly what they were searching for in the Guerena home as well as three other residences in the area that were subjects of a drug investigation. Court documents that show what officers were searching for in the case have been sealed and what was seized as evidence has also been sealed.

Sheriff Clarence Dupnik, through a department spokesman Tuesday morning, declined an interview request." Link

Revenant said...

What you're not acknowledging, Ali, is that Guerena *could* have been engaged in dangerous criminal activity inside his apartment. The police really had no choice but to fire dozens of rounds into the house. To do otherwise would have put *police* in danger, and police are more important than dregs of society like Guerena.

Now, police are seldom wrong about anything -- that goes without saying. But in the unlikely event that they *did* do something wrong, Guerena's family will be able to pursue civil action in the courts. And then everything will be fine -- no harm, no foul, right?

jr565 said...

Simon wrote:

Now, I understand why liberals like you would be all for that result. What I can't understand is why the tea party would break with a decades-old purpose of the conservative movement to sign on to a cop killer's charter, for no better reasons than fear of Obama and because they were hoodwinked about the content of the decision by the liberal media.


Because a lot of conservatives are actually libertarians and libertarians are sometimes as irrational/extreme as liberals

Revenant said...

Because a lot of conservatives are actually libertarians and libertarians are sometimes as irrational/extreme as liberals

I hate to break this to you, but you're pretty much the only "conservative" here that shares Simon's appreciation for the taste of government dick.

Pogo, Methadras, Fred4Pres, Palladian -- these are not libertarians by any stretch of the imagination. The right of police to illegally force their way into your house without resistance by you is not a long-held conservative principle. It dates back all of fifty years, supplanting a centuries-old understanding that a man's home was his castle.

THAT, little man, is what real conservatives -- and libertarians, and sensible liberals -- believe in.

Almost Ali said...

The individual is hardly in a position to resist when the state knocks down his or her door in the dead of night, or puts an adrenalin-pumped ear to a random wall to test its exigency.

Even with planning, it's a losing proposition for the individual who must decide between life and death on the spot. While the representatives of the state, the police, enjoy the law and luxury of attacking with minimal risk. Of going out on regular turkey shoots with live ammo aimed at human targets. On what they call an adrenalin rush.

Terrye said...

Revanant:

Get a search warrant? So, you ignore the screaming woman and go to a judge and get a search warrant and hope the king of his castle has not finished the job of beating his wife to death before you get back and serve it?

That is ridiculous.

Mr Bungle said...

Shoving an officer is the minimum defence a person can do in self defence. The officer was not injured. How is that any more incompatible with modern Fourth Amendment jurisprudence than any other constitutional right? Which Civil Right infringements are defensible against using the least force possible.
If the police illegally enter, arrest you and confiscate your legal guns is that enough to defend yourself or do you have to wait till court is resolved to get guns back. What if the police illegally enter and disarm a whole town before the first court case is resoled? Disarm the whole state? So you have no legal recourse if the police are illegally disarming a nation even though there may be a coup in effect??? Spose you have to sit back without defending your country and risk a hostile a take over, legally speaking..

LawGirl said...

Rev said:

Describe the steps that took you from "someone made a phone call to the police" to "the police must forcibly enter the house and subdue its occupant to protect the rights of a person they haven't even established lives there".

In the world you and Simon envision, all I have to do is call the cops and tell them you hit me and I'm afraid of you. Then the cops are free to kick in your door, subdue you, and toss the place. Evidence? Warrants? Some actual indication a crime has taken place?



Terrye responded:

Revanant:

Get a search warrant? So, you ignore the screaming woman and go to a judge and get a search warrant and hope the king of his castle has not finished the job of beating his wife to death before you get back and serve it?

That is ridiculous.


That would be ridiculous, but, in fairness, it seems you're setting up a straw man here. Rev didn't say you ignore screams. Indeed, he implied that "some actual indication that a crime has been committed" may be sufficient for the police to exercise the privilege we the people have granted them.

LawGirl said...

Simon - You're articulating your position well, but I think you're largely missing the concern here. It's not what happened in THIS case (exigent circumstances may well have existed here, not to mention an invite from one of the residents, which should be sufficient) that bothers me, but the following very broad language from the opinion:

"We believe . . . that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence."

There are several problems with this language. For instance, what is meant by "resist"? If a police officer comes to my door without a warrant and asks for entry, can I say no? What if he pushes for it anyway? Can I shut the door on him and call his superiors before it escalates? What if I'm not sure he's really a police officer? Am I resisting by requesting a good look at his badge and a moment to call the police department to confirm he is one? This language is FAR too broad to protect my rights to ensure that the officer is there validly.

Another problem with it is that it broadly applies to police conduct that is "unlawful." I recognize the difference between rights and remedies, but I think it is a fantasy to believe that having meaningful remedies (even if we assume that is true, which I think is not a valid assumption) makes up for having our rights violated in the first place.

A true conservative should be wary of usurpation of individual rights in the interest of more government authority. I think we forget that the police are OUR servants, not the other way around. We have deputized them to take care of public order so that we can go be butchers, bakers, and candlestick makers without having to concern ourselves with this task. But, the ultimate authority still belongs to us, not them. When we forget that, we set ourselves up for tyrrany. I think that's a true conservative perspective on this.

Terrye said...

Lawgirl:

I am not setting up the straw man. The cop is not there to execute a search warrant, he is there in response to a 911 call of domestic violence. If the man will not let him enter the home...then how he is going to know if it is bogus or not? And why even bother responding to the call at all, if you can not enter the home when you get there.

This is not a case about the execution of a search warrant, this is a case in which a police officer was called to the home. He did not just show up for no reason and kick in the guy's door.

I imagine there will be challenges..and those challenges will be based on what is and is not lawful and unlawful entry. It could be argued the decision is not specific enough, but the idea that the man in this case is some sort of victim strikes me as absurd.

Terrye said...

And how is this so different from the case of the Professor, Gates who was arrested by a Cambridge police officer? After all, Gates was in his own home and did not want the police there...but if I remember correctly when Obama said that the police acted "stupidly", conservatives sided with the cops.

LucienNicholson said...

As a law student who just finished Criminal Procedure, I am not surprised by the fact that the Court has given more deference to police to make unwarranted arrests. It seems like every case since the 1980s has lowered the bar of what constitutes "reasonable." I understand the rationale the Court gave, but I think it makes a mockery of what most people believe a reasonable search or seizure is.

I think the facts of the case suggest that the police didn't even have probable cause to believe the fleeing individual was in that apartment.

I wouldn't hold the police liable for entering the home, but I certainly do believe he ought to benefit from the exclusionary rule.

Methadras said...

Shanna said...I'm still stuck on this too, Synova. I would love to hear the explanation for why this is not considered permission to enter...

If she isn't a legal owner of the home, she would therefore, I would think, have no say so on the matter of the property. If she is on the mortgage or the deed, then I don't know what the issue is unless her husband didn't agree to her giving permission for the police to enter and he took it as a verbal slip up out of politeness or willful obedience.