Monday, May 16, 2011

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

...that, my friends, was written by Justice Steven David in his opinion in a recent Indiana Supreme Court Case.


First, let's get a refresher of the Fourth Amendment:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I can't believe in America in 2011, anyone, especially a judge who has spent his/her life studying the Constitution and the law could possibly believe, much less justify, that the Fourth Amendment as it was originally written above is somehow not pertinent to today's society and is in fact incompatible with our modern set of laws. How on earth could the basic principle of the Fourth Amendment have changed?  Society may have changed since the Constitution was originally written but the basic fundamental principles of freedom have not.

This story here is incredible (Click on the link).

If I lived in Indiana right now I would be livid. But even though I don't live in Indiana, what just took place there sets an incredibly dangerous precedence for the rest of the nation. The Supreme Court of the State of Indiana in its latest 3-2 ruling just stripped the citizens of Indiana of their Fourth Amendment rights and opened the door for other states to follow suit.In the state of Indiana, public policy takes precedence over the Constitution.

The case: http://www.in.gov/judiciary/opinions/pdf/05121101shd.pdf


Justice Steven David wrote:
"this Court is faced for the first time with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers. We conclude that public policy disfavors any such right."

Since when does public policy trump the Constitution of the United States? If we allowed public policy to dictate what rights the people should and should not have, we would have no rights and we'd be living under a dictatorship.

Thank goodness the Indiana Supreme Court isn't full of idiots. Justice Robert D. Rucker issued the dissenting opinion:


"The common law rule supporting a citizen's right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the United States Constitution. Indeed, "the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton v. New York, 445 U.S. 573, 585 (1980). In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home."

Alas, a voice of reason. Unfortunately there were only two voices of reason on the bench today.

Generally a warrant is sufficient enough for police to search a home because that warrant requires (or should require if done properly) probable cause---which must be backed by some sufficient evidence. The process of a search warrant is not only about constitutional protections but accountability as well. The judicial system must be accountable for its actions, it can't be allowed to do what it wants anytime it wants to do it. An ethical judge will not sign a warrant that does not contain probable cause and police are not allowed to search without a warrant.We have a system in place, it's not always perfect, but it works. We cannot afford to start messing around with it.

Without the Fourth Amendment and the ability to enforce it, government agencies of this nation could enter/search our homes, offices, vehicles and even our persons anytime for no reason.  The Fourth Amendment is one of the most important basic fundamental principles this country was founded on and it is imperative to maintaining a free nation.  I suppose the next step for this is the U.S. Supreme Court as I can't imagine this is over by any means. The people of Indiana should be up in arms about this, hell they should be on the front steps of the Capitol building protesting right now. 


The looming question on my mind is.....which of the remaining amendments in the Bill of Rights will be next?

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