Indiana Court: You have no right to keep cops out of your house

Friday, May 13th, 2011

This ought to get everyone’s panties in a wad. In Indiana, If the cops want to come into your house, you’d better let them regardless of whether they’re doing it legally or not.

Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry.

And it pretty much deteriorates from there:

“We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” David said. “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

Yeah, if there’s anything we can’t have, it’s the escalation of violence by people who mistakenly think they still have rights under the new modern interpretation of the Fourth Amendment.

Thanks to Agitator reader Laura Victoria for posting this link in another thread.

[Posted by Dave Krueger]

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94 Responses to “Indiana Court: You have no right to keep cops out of your house”

  1. #1 |  Mannie | 

    #49 | Buddy Hinton | May 13th, 2011 at 5:23 pm

    It should also be noted that resisting an unlawful entry does not need to lead to an escalation of violence. The police have the option to retreat,

    Give me a hit of that thing before you put it out.

  2. #2 |  marco73 | 

    Well, in this story in Florida, apparently the deputy sheriff didn’t have to force his way into anyone’s house. Just “talked” a 15 year old into a sexual relationship. New professionalism at its best:

  3. #3 |  Buddy Hinton | 

    Give me a hit of that thing before you put it out.

    Police retreat all the time in order to ensure a peaceful resolution, even in situations where they have a valid warrant. Here is a recent example caught on video:

    To put it in the vernacular: duh.

  4. #4 |  Chris in AL | 

    Never ceases to amaze me that governments on the other side of the world are considered threats to ‘America’s Freedom’ but our own is not.

  5. #5 |  Buddy Hinton | 

    Give me a hit of that thing before you put it out.

    Another example would be Columbine, while kids were bleeding out. They should have gone in, but they used the option to stay out, and there was no liability for choosing this decision. In a case like Columbine the police maybe should have had liability for their decision to stay out, but this extreme example proves the rule that police ALWAYS have the option to stay a safe distance away. In cases where the entry is unConstitutional (eg, not Columbine) they should be required to use that ever present option upon pain of severe sanctions. To completely deny this ever present option, as the majority opinion of the Indiana Supreme Court does, is ludicrous.

  6. #6 |  JS | 

    Buddy Hinton “The police have the option to retreat, and, when they are entering unConstitutionally they should be required to choose exactly that increase-the-peace option.”

    I agree but honestly, who’s gonna “require them” to do anything? Like Stalin is reported to have said when he was having a conflict with the pope. “And how many divisions does the pope have?” Nobody is going to do anything to reign in the police. Not the politicians, not even the president or the army.

  7. #7 |  Buddy Hinton | 

    This may sound strange coming from a regular reader here, but on consideration I think I begin to feel sorry for the cops (in general, not these specific cops). They are stuck in the middle of a major cultural upheaval, and are about equally likely to get it in the neck from both sides as political positions shift and cultural expectations change.

    as bad as police in the past were, they generally stayed out of people houses without a warrant, and were also willing to show a warrant before coming in when they did have one.

    Police are not caught in some kind of new cultural upheaval as far as busting into people’s homes — rather, they are creating a cultural upheaval by using non-traditional practices on their part and on their own initiative.

  8. #8 |  Buddy Hinton | 

    I agree but honestly, who’s gonna “require them” to do anything?

    The Courts, just like they did in Mapp, Miranda, Garner, Payton, Bad Elk, Gant and so on. the first step is to have Professor Kerr stop acting as mentor the incoming justices on their way in as he did for Justice Sotomayor.

  9. #9 |  Buddy Hinton | 

    a good second step would be to stop forcing all the new judges and justices to have prosecutor and/or AG experience.

  10. #10 |  JS | 

    I don’t know. I hope you’re right but it almost looks like the police are too powerful for the courts to reign in. Remember that Maricoa county deputy that took that piece of paper from the defense attorney last year. Eventually after a national outcry they sentanced him to acouple of nights in jail or something and so they took him downtown, booked him and then got confused about where he went from there. I don’t know if the guy ever did his court ordered time.

  11. #11 |  GT | 

    @David “How can a person write that and still be able to look at themselves in the mirror? The entire mindset is just alien to me.”

    As another commenter pointed out, this robed scumbag was a government stooge at GTMO; in other words, he is a career whip-licker and justifier of whatever his political masters decree. Like Scalia, like Yoo, Bybee and the rest of the sub-human shit that writes opinion pieces justifying atrocity, brutality and tyranny.

    This is why right-thinking free men don’t give a flying fuck what some asshat in a 16th century costume writes or says; they and their entire system serve solely to provide pseudo-intellectual lipstick for the pig that is raw, parasitic power.

    They will lock up a serf for life for possessing a prohibited plant, but won’t prosecute their own (Dimon, Blankfein, Bush, Blair etc) even when evidence of ‘law’ breaking is clear.

    Remember – these are the vermin who think that it’s just Jim-Dandy that Obama has a little list of people he can have killed on a whim; that the US govt can blow up whatever bit of the planet it feels like, regardless of how many sleeping children are under the drone’s crosshair.

    If they don’t see themselves as bound by their own laws, I don’t see why we ought to do them the courtesy of pretending they are ‘honourable’.

    It’s well past time to “hoist the black flag”, as Mencken wrote.

  12. #12 |  varmintito | 

    I’ve read the opinion, and it is a perfect example of judicial overreach. On the merits of this individual case, the trial court’s refusal to give the requested instruction. The police came to the house in response to a 911 cal from the defendant’s girlfriend. When the police arrived, the defendant was outside, but he and his girlfriend were still yelling at each other. When she told him to take the rest of his stuff, he went back inside and when the police tried to follow him, he shoved one of them, and was arrested. Apparently the defendant’s girlfriend wanted the police to be there.

    The police did not want to enter the house to arrest the defendant, the police wanted to enter the house to make sure that the defendant and his girfriend refrained from violence in a protracted, heated and ugly domestic dispute that had already resulted in the 911 call that brough them there in the first place.

    Simply put, this is NOT a case about resisting entry to make an arrest, but a case about resisting entry to make sure nobody became violent during a heated domestic spat.

    I think, under the specific circumstances of this case, refusing to instruct the jury on the common law right to resist entry in the home to prevent an unlawful arrest was correct — not because that rule should be abandoned, but because it was irrelevant to what happened.

    What makes the Court’s opinion so egregious is that it used a case where the facts supported the police’s action, but used that as a pretext to completely eradicate the home as a sanctuary from unlawful arrest.

    This is a very dishonest opinion. It miscasts the issue as resisting entry to prevent unlawful arrest. The defendant was not resisting entry to prevent unlawful arrest, because the police weren’t trying to enter the house in order to arrest him. Common sense dictates that the police were trying to follow them into the house to prevent their ugly argument from escalating into violence.

    There was no attempt to arrest until the defendant shoved the cop, at which point the arrest was lawful.

    What a craven, dishonest legal opinion.

    It is also the height of judicial activism. The Indiana Supreme Court took a case that, on its facts, had nothing to do with resisting entry to prevent unlawful arrest. They then used it as a vehicle to abolish the common law rule.

    This is not what courts are allowed to do. If there is a live legal dispute, the court can resolve it. In resolving it, they can resolve the actual legal issues.

    They cannot, however, use a legal opinion to resolve legal issues that are not before the court. That is what a legislature is for. Because this case was not about the common law privilege to resist entry into one’s home to make an unlawful arrest, the court had no business whatsoever abolishing that common law privilege.

    If that privilege is to be abolished, it must be in a a case where it is properly before the court. If it is not before the court, only the legislature may abolish it.

    Obviously, if the privilege were statutory (legislature-made) as opposed to common law (judge-made), the Indiana Supreme Court would have no power to abolish it.

    Also, I suspect the court was trying to indirectly undermine the Fourth Amendment by abolishing state common law that shares many of its features.

    Finally, the court’s justification for abolishing the rule — that the common law rule no longer served any purpose because the defendant was amply protected by the exclusionary rule, police conduct review boards, and civil remedies — is a joke. If you doubt this, you plainly are new to this blog.

  13. #13 |  Steamed McQueen | 

    Note to self: Don’t move to Indiana.

  14. #14 |  Sean | 

    “Well, in this story in Florida, apparently the deputy sheriff didn’t have to force his way into anyone’s house. Just “talked” a 15 year old into a sexual relationship. New professionalism at its best:

    Just checked this story out, hoping to read the comments. However, “commenting has been deactivated for this article. ” This is becoming more and more common with any news story that shows law enforcement in a bad light. Seems like some people don’t want us to discuss these things ….

  15. #15 |  Josh | 

    Some further 4th Amendment shredding:

  16. #16 |  John C. Randolph | 

    This ruling shows the shocking degeneration of law schools in America. Any first year law student should know that we have the right to defend ourselves and our property from trespassers, and that a police officer must have a valid warrant, or probable cause to believe a crime is being committed, to enter our property legally.

    When the cops are acting illegally, they have no more right to violate our property than anyone else. These “justices” in Indiana are a disgrace to their profession, and should be disbarred.

    As for their claim that we should all just obey the cops at all times, in order to avoid violence, don’t they understand that when the courts are known to have abandoned their duty to uphold our rights, bloody revolution is a likely outcome? Did they even hear about the LA riots?

    What a pack of useless, tax sucking assholes.


  17. #17 |  OBTC | 

    #64 | Sean
    “…Just checked this story out, hoping to read the comments. However, “commenting has been deactivated for this article. ” This is becoming more and more common with any news story that shows law enforcement in a bad light. Seems like some people don’t want us to discuss these things ….”

    I too, have noticed this “phenomenon” in my own local paper and that of others on the internet.

    I think the name for this is: badgelicking batonswallowers but I could be wrong.

  18. #18 |  Nick | 

    Sorry your honor. I was loaded for bear.

  19. #19 |  supercat | 

    #49 | Buddy Hinton | May 13th, 2011 at 5:23 pm

    //Furthermore, the Court should develop some civil remedies under 4A itself for innocent parties who suffer unConstitutional searches and seizures.//

    The remedy is simple: stop pretending that people who force their way into a dwelling for the purpose of accosting the occupants, in a way that they cannot reasonably believe to be lawful, are not robbers. Likewise stop pretending that those who take deliberate unlawful action whose expected consequence is an illegitimate raid on occupied dwellings are not conspirators in robbery.

  20. #20 |  Joey Maloney | 

    No, the name for that is, you would not believe what a freaking sewer newspaper comment sections are. Seriously, they make Free Republic look like Plato’s Republic.

    I’m sure what happened in the specific case is you had an instant feces-fight between “cut his balls off” and “the bitch was begging for it”. Maybe one day some papers will get a clue about community management.

  21. #21 |  Windy | 

    I am afraid if upper management in police departments don’t start cracking down on cops who use illegal tactics, commit abuses of authority, and engage in any kind of misconduct, especially “bad shoots” (of people AND dogs); and if so-called “good cops” don’t begin to restrain the “bad cops” and report those abuses of authority, illegal activities and tactics, misconduct and “bad shoots”; the people are going to start taking the situation into their own hands and there really WILL be a “war on cops”. I don’t think anyone wants to see this kind of outcome, but how do we prevent it without allowing the police state to become set in stone?

  22. #22 |  David McElroy | 

    The only people who could say something like what this decision says are very naive people who don’t believe police officers ever intentionally do anything wrong or make bad decisions. The attitude seems to be that innocent people are supposed to bend over and be raped — and then file a complaint later. And we KNOW how objective the investigations of police misconduct tend to be. The truth is that the sort of people who write these decisions live very isolated lives in which they never see police as anything but respectful public servants. They’re out of touch with the reality of life for the rest of us.

  23. #23 |  It’s Sam Alito’s World… : Lawyers, Guns & Money | 

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  24. #24 |  No Right to Resist Unlawful Police Entry | 

    […] this “would be a laughable finding if it wasn’t so serious” and Agitator guest Dave Krueger snarks, “Yeah, if there’s anything we can’t have, it’s the escalation of […]

  25. #25 |  Dave | 

    So let me see if I have this right… If the Vang Khang case had happened in Indiana and not Minnesota, under this ruling Khang would have surely faced charges and had his life ruined… even though he opened fire because he suspected a robbery, not a wrong-house raid.


  26. #26 |  Buddy Hinton | 

    So let me see if I have this right… If the Vang Khang case had happened in Indiana and not Minnesota, under this ruling Khang would have surely faced charges and had his life ruined… even though he opened fire because he suspected a robbery, not a wrong-house raid.

    To be fair, it is doubtful that this decision applies to people who didn’t believe it was the police coming in. Remember, the crime is resisting police. To have the proper intent to commit that crime, one has to know it is police. In this case, the guy clearly did.

    I understand that police will lie and say that they announced when they did not, or say that they announced in a manner that could definitely be heard and understood from inside the dwelling when they did not. However, the answer there is to really (not in a pretend way) put the burden on police to announce better (that is, sirens, bullhorn, flashers).

    This case just decided is about something else — the right to resist police when you know they are going too far. Don’t get me wrong. I strongly feel that one should have the right to resist an unlawful entry, and that police should be the ones with the duty to retreat when making an illegal entry into a home or business. But, I don’t think it is helpful or productive to try to make this case be about illegal entries when the occupants should not be expected to know it was police. That is a separate problem, with separate answers.

  27. #27 |  David | 

    The problem is that as a practical matter, courts seem to think that private citizens have some kind of copdar. Maybe I just don’t read the websites where that kind of case gets mentioned extensively, but has a court ever signed off on a “I didn’t realize he was a police officer” defense?

  28. #28 |  Buddy Hinton | 


    Not quite a court decision in Khang’s favor, but:

    Prosecutors apparently declined to charge and/or prosecute Khang, and he did get a civil settlement.

  29. #29 |  Jamie | 

    I’m surprised nobody’s pointed out the obvious: fucking activist judges.

  30. #30 |  Buddy Hinton | 

    By the way, because I don’t think that this case has anything to do with shooting at people that you don’t believe are policemen, one may wonder why I so strongly feel that there should be a right to resist unlawful entry by those that one knows are police officers. The two primary reasons I feel this way are as follows:

    1. a policeman who is willing to make an illegal entry is also likely to plant evidence and make unlawful seizures (eg, arrests, detentions, property seizures) once inside the home and to give perjured testimony about what happened in the home. These problems are bad enough outside the home, but once you are inside the home there is absolutely no way to prove that it wasn’t your dope or that you did not swing at the officer. The increased ability to frame an innocent person that comes with being inside their home illegally is a huge reason to allow resistance in this situation, and I believe that this is a necessary and natural implication of the Fourth Amendment itself. “He consented to entry and there was dope in plain view” is way too easy for crooked police, which are exactly the kind of police that make illegal entries in the first place.

    2. At the very least, the loss of right to resist needs to be used as a quid pro quo, or bargaining chip if you will, in the negotiation over civil remedies after the fact. The majority breezily says that Barnes had civil remedies. That was not established. While section 1983 does exist, there is qualified immunity. There is no meaningful injunctive relief under section 1983 (but there should be!). Even the measure of damages under section 1983 is woefully deficient in compensating that affront to dignity of the person and his home. Winning a new doorframe plus a dollar plus (maybe) attorney fees is not adequate compensation even if you win. If the existence of meaningful civil remedies is a precondition to losing the right of resistance to unlawful entry of the home then 4a must guarantee these civil remedies and must guarantee them at a meaningful level. If section 1983 is not up to the job (and it is not) then these remedies must begin to be drawn by Courts from the existence of 4a itself (much as the Court did with the Exclusionary Rule to protect the guilty). Potentially there is a silver lining here, but, We The People need to be legally savvy and smart in understanding and in making the courts understand what I am saying in this reason #2.

  31. #31 |  inIN | 

    Fine. No more nighttime SWAT raids into homes then. Because anyone with a bullhorn and a flashy light could claim to be the Police and next thing you know you and your family are dead (but at least you didn’t resist).

    But this part, “Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. E.g., Warner, supra, at 330 (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist); State v. Hobson, 577 N.W.2d 825, 835–36 (Wis. 1998) (citing the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies),” gives me pause. Disease-infested prisons, physical torture? Yep, we got that. Getting raped in prison and getting AIDS isn’t an unheard of outcome. Internal review and civil remedies? The game is rigged! Even if you “win,” the cop is very often not punished…and later will be named LEO of the year to make sure all doubt is removed.

    This is ripe for abuse…as are the judges in question.

  32. #32 |  David | 

    Let’s not forget that as difficult as unringing a bell is, it’s still easier than unshooting your dog after it starts yapping in an aggressive manner.

  33. #33 |  marco73 | 

    re #64, Sean. The story of the sheriff in Tampa having relations with the 15 year old. It was the lead story on the 11pm news Friday night. Apparently the 39 year old deputy is from a “well-respected” local family.
    They had perp walk footage and everything. Booked him into county lock up.
    No one in the family wanted to comment.

  34. #34 |  JS | 


    “and if so-called “good cops” don’t begin to restrain the “bad cops” and report those abuses of authority, illegal activities and tactics, misconduct and “bad shoots”; the people are going to start taking the situation into their own hands and there really WILL be a “war on cops”.”

    Nah, the American people will rise up against officials who opress and brutalize them about like people in the Soviet Union rose up and fought back. We’ve reached the point where Americans are just too scared to resist being brutalized.

  35. #35 |  SamK | 

    The cops were right.

    The court is wrong…so wrong I don’t know what to do about it, but feel that I should do *something*. Writing my congressman seems weak.

  36. #36 |  Acksiom | 

    @Windy, the best answer I’ve been able to come up with is ubiquitous sousveillance. Private cameras everywhere, uploading in real-time to PIQ or similar sites, better yet privately owned offshore servers deliberately constructed and explicitly contracted for personal security recording preservation and dissemination.

    When we have multiple sites showing “Illegal Police Outrage of the Hour/Day/Week/Month” that any Citizen can follow up and vote on, I think things will become more rational.

  37. #37 |  JS | 

    Acksiom #86, you’re right about the need for safe out of the government’s reach camera recordings but it still wouldn’t much difference because these stories, as common as they are, are still massively under-reported in local and national mainstream news. If Bill O’Reilly, Katie Couric or your local ABC affiliate reported half of the cases that Radley does on this site this shit would have been reformed and corrected a LONG time ago. Most Americans are not presently convinced that there is even a problem.

  38. #38 |  Acksiom | 

    JS #87, thanks for responding.

    To clarify: you appear to be asserting that such incidents MUST be widely reported in mainstream news to have ANY positive effect on the police community. If you want me to address that further, you need to present some kind of argument and proof to back it up. As it stands – i.e., without support — it appears to me to be an example of what I think of as the “Movement Fallacy”; the idea that expansions in civil liberties are driven so much more by sufficiently large activist kinships than it is by technology that such groups are a necessity. I’m not an expert in history but my analysis suggests that expansions in civil liberties are much more the result of the reverse, namely advances in technology which make expansions of civil liberties materially possible ITFP. You still need activists to push the changes, and enough wealth circulating around (usually as a result of the tech improvements) for everybody else to agree to go along with them, but without that tech and wealth the large activist kinships are ineffective.

    Therefore, without such support, I’m going to have to go with my own experience, which tells me that it’s much more efficient and effective to directly affect the people who are directly responsible for the consequences. Find the people at the responsibility/authority control points, the bottlenecks, and focus your efforts on them. Namely, police and their civil service directors.

    So, while I’m not linked into the particular thinking processes of the police community, I nevertheless doubt they’re all that different from everybody else’s. This means that police do opportunity/risk/reward estimations all the time, just like everybody else. So as more and more people put up more and more evidence of illegal police actions, I expect more and more cops are going to think twice about stepping across the legal line. I also expect more and more smarter and more honest cops to. . .modify. . .the behavior of their dumber and more criminal colleagues in their own self-interest.

    When there’s a dozen different videos of some cop crossing the line a dozen different times, you don’t need mass demonstrations. You just need minimally competent legal representation. Add in augmented reality tech that can bring up the local police record for any particular cop you’re dealing with in a few moments, and it just snowballs from there. Then I think about adding in online records of history-in-office of prosecutors and judges, and compiled “report cards” for cities, counties, and other jurisdictions, and I start getting a tingle up MY leg. Imagine plugging figures for a couple dozen criteria into an assessment app, and finding out in moments the best/worst areas to live/work/shop/etc. in terms of the behavior of the agents of the State there.

    I’m not saying it has to work out that way; I’m just looking at the current tech/marketing trends and extrapolating from there. It does appear to me, though, that you’re saying it does have to work out your way or it won’t work out at all. By my standards, that’s a rather extraordinary claim, so I naturally want some extraordinary proof.

  39. #39 |  demize! | 

    #61 @FT Bravo! The courts do not restrain bad conduct from the police. They issue writs and prohibitions which are ignored in the field, by commanders, or by policy. This was the case during the Republican convention in NY. As well as numerous other instances. The courts role is to be ignored and then rule in civil actions for the victims after the fact. Either way we pay.

  40. #40 |  Michael Ejercito | 

    This is why we have the Second Amendment.

  41. #41 |  John Q. Galt | 

    4) Ammo box.

  42. #42 |  Charlie O | 

    If I lived in Indiana, regardless of this bullshit ruling, I would very much continue to illegally resist unlawful entry of law enforcement into my home. I have quite the supply of ammo, long and hand guns to accomplish this. With no regrets or second thoughts.

  43. #43 |  Noella | 

    Well, pointing a gun at a cop is going to get you shot so you can have an entire armory in your house but I wouldn’t suggest using it. However, this is definitely a bad ruling and opens up a can of worms that isn’t funny. Somehow I think it isn’t going to end here because I’m willing to bet the ACLU and a whole slew of civil rights lawyers are going to protest this. What’s the point in having a constitution that’s supposed to protect every citizen in the country including citizens in Indiana if some screwed up judge in Indiana decides that an amendment in the constitution doesn’t apply to people in Indiana. Of course, it makes me laugh when the States go around the world crowing about all the freedom we have here. This country has never at any point been a FREE country and never will be. As a matter of fact it’s spent a lengthy period of centuries to restrict this so-called freedom. All I can tell this judge is that either Indiana is a part of the U.S. or it isn’t. If it is, then all amendments in the constitution apply. Either deal with it or secede. I don’t think we’ve heard the last word on this.

  44. #44 |  bruce | 

    Well, I do live in Indiana and I have a few things to say about this new ruling…
    1. I have always been 100% law abiding. I guess now it’s 95%.
    2. If the officer choses to enforce this, he’s wrong and knows it.
    3. Don’t even bother showing up without bringing the bags!
    4. Good luck.
    5. Semper Fidelis!