Saturday, May 14, 2011

Outrage In Indiana Part II: An Open Letter To Mitch Daniels

The Honorable Mitchell E. Daniels, Jr.
Governor of the State of Indiana

Dear Mr. Governor,

I write to you to express my severe outrage regarding a recent decision of the Indiana Supreme Court, and to implore you to take action in this matter.

As you are undoubtedly aware, on Thursday the 12th of this month, the Indiana Supreme Court ruled that a private person is not entitled to forcibly resist the burglary of his home by law enforcement officers acting under "the color of law".

This decision violates nearly 800 years of legal precedent, from the Magna Carta of 1215 to, most recently, a United States Supreme Court ruling in 1948 (one of two such rulings in the 20th century) authorizing the use of reasonable force to resist such unlawful entry of a home by police. It also ignores the current laws of your state, which permit the use of reasonable force for such purpose, and which only prohibit the forcible resistance of lawful police acts.

The justices responsible cite "current Fourth Amendment jurisprudence" in their decision- said "jurisprudence" ignores both the letter, and the intent, of the Fourth Amendment of the United States Constitution, and the substantially similar Article 1, Section 11, of the Indiana State Constitution.

The justices also cite "public policy" as a basis for their decision. I cannot fathom how any reasonable person can believe that abrogating the essential liberties of the public, in furtherance of government intrusion, can be seen as an acceptable "public policy".

Governor, I have become an ardent participant in the movement to convince you to run for the Presidency of the United States. Chief among the qualities I admire about you, are your steadfast devotion to reducing the size and scope of government in all respects, and your exceptional efforts in broadening the rights of individuals to defend themselves, their families and their homes by enacting protections for those who exercise their Constitutional right to keep and bear arms. This recent ISC decision violates both of those principles- it intrusively expands the role of government by severely curtailing the right of the individual to resist illegal police action with judicious force.

I implore you to examine the matter carefully, and take whatever action is within your power to undo this act. Devote your considerable talents to this matter, as you have to the many other difficulties you have faced in your position. I implore you also to remember the oath you swore when you assumed your office- to uphold the Constitution and laws of Indiana, and the Constitution of the United States.

I ask you also to bear this thought in mind: The distinction between 'rights' and 'privileges', in my estimation, is best defined by the tenacity with which one may exercise them. Rights are sacred, bestowed upon us by our Creator, and may be defended by all necessary means. Privileges are granted us by government, at its sole discretion, and offer no substantive recourse when wronged. Ask yourself this: If a person is barred from the use of force to protect the sanctity of their home from unlawful government incursion, and must instead beg the court to grant monetary damages after the harm is done, is the Fourth Amendment a right, or a privilege?

This great matter will test your devotion to your principles. If you are the man I believe you to be, you will support the sacred rights of the individual, rather than the oppressive will of government.

Your loyal supporter,

Alex Kauffman

UPDATE: I recieved a response!
UPDATE: Indiana's General Assembly passed a bill to undo this decision on March 9th 2012, and Governor Daniels will sign it any day now.

Friday, May 13, 2011

Outrage In Indiana: Indiana Supreme Court Rules 'No Right To Resist Illegal Police Action'

Yesterday the Indiana Supreme Court ruled (PDF) that a person has no right to forcibly resist an unlawful police trespass into his home, in violation of a legal principle to the contrary dating back to the Magna Carta. My opinion of this should come as no surprise: I was born on the anniversary of the Magna Carta's signing (the 766th anniversary, to be exact).

Indiana Supreme Court has effectively ruled that every applicable legal precedent, and all applicable Indiana laws, are null and void.

First, the facts (reproduced from the link above):
The court's decision stems from a Vanderburgh County case in which police were called to investigate a husband and wife arguing outside their apartment. When the couple went back inside their apartment, the husband told police they were not needed and blocked the doorway so they could not enter. When an officer entered anyway, the husband shoved the officer against a wall. A second officer then used a stun gun on the husband and arrested him.
The court conceded that no warrant or "exigent circumstances" existed to authorize the entry, and further conceded that the entry was ILLEGAL.

The subsequent arrest was also unlawful- Indiana law only illegalizes resisting lawful police actions: "...forcibly resists, obstructs, or interferes with a law enforcement officer... while the officer is lawfully engaged in the execution of the officer's duties" (IC 35-44-3-3).

Another statute in the same chapter (linked above) helps to establish the intent of the law- namely, that it is only a crime in Indiana to disarm a police officer "while the officer is engaged in the performance of his or her official duties".

Likewise, a person can only be charged with battery of a law enforcement officer if the battery is committed "against a law enforcement officer... while the officer is engaged in the execution of the officer's official duty" (IC 35-42-2-1).

It goes without saying that a police officer is only engaged in "the execution of official duties" if they are obeying the laws they are sworn to enforce. 

Also, unlike most states, Indiana's use of force laws do not restrict a person from using force to prevent or terminate an illegal act by a police officer (IC 35-41-3-2), and in one respect, hold the police to the same standard of treatment as a private person with respect to the application of said laws (a law enforcement officer... has the same right as a person who is not a law enforcement officer to assert self-defense...) (IC 35-41-3-3).

Remember this, because I will come back to it shortly: A law enforcement officer in Indiana is only protected when he is engaged in the lawful execution of his duties. In that state, the law says it is legal to resist an unlawful police action, and legal to disarm a police officer acting unlawfully. A person is not prohibited from using force to prevent an illegal police act, and police officers are held to the same legal standards of use-of-force as private persons.

What is the precedent for resisting an illegal police burglary of your home?

Jurisprudence arising from the Magna Carta, for starters.

Also, two United States Supreme Court decisions (thanks to The Volokh Conspiracy for providing text- go to the link and read it for a much more in-depth treatment of the subject):

Bad Elk v. United States:  “If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest.” (177 U.S. 529, 535 (1900)).

United States v. Di Re: "One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases" (332 U.S. 581, 594 (1948)).

Stated differently: SCOTUS has decided a) That a person has a right to resist illegal activities of the police, b) a right to use force when necessary to resist such illegal conduct, and c) that lower courts must uphold these rights.

So, one must ask: Since the Magna Carta, nearly 800 years of common law precedent, two United States Supreme Court decisions, and Indiana state laws, all authorize the conduct of the defendant, why would the Indiana Supreme Court rule differently?

The answer is not surprising: The court's belief that "civilized people" should resolve their disputes with lawsuits, and a belief in the inability of "the commoners" to make reasonable decisions:

From the decision:
"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. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action."
"Means", like a lawsuit, wherein an activist judge who ignores common sense, constitutional law, and eight centuries of legal precedent, decides what damages you're entitled to?

“...resistance to an arrest by a peace officer did not involve the serious dangers it does today.”
Dangers, such as the hundreds of innocent people who've been shot by police during botched drug raids? How can a danger created by the police justify submitting to illegal acts committed by the police?

"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"
What about the very real, modern dangers of falsified evidence planted by police, widespread forcible rape and sodomy in correctional institutions, exposure to bloodborne pathogens such as HIV, and the harmful effects on someone's mental, physical, financial, and marital well-being and public reputation from even an abortive prosecution?

"In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment."
Right, because "we lowly commoners" aren't capable of exercising the flawless situational awareness of highly-trained, law-abiding police officers (such as the two goons who burglarized this man's home and illegally arrested him).

I sincerely hope this goes to SCOTUS. This decision is OUTRAGEOUS. What hope is there for our system of government, when the police are free to violate the laws they've sworn to uphold, the courts ignore the law in order to authorize police lawlessness for the sake of "public policy", and We The People- who pay their salaries and employ them for our mutual benefit- are prohibited from exercising a centuries-old RIGHT to force their obedience of the law?

George Washington famously said that the instruments of government force "Shall remain the servant of the people, and never their master". This principle was codified, a century later, as the Posse Comitatus Act- passed three days after the anniversary of the Magna Carta, incidentally- and prohibited the use of military forces in law enforcement roles. Washington was astute enough to realize that when the military- who fight our nation's enemies- police the people, the people become the nation's enemy. The police, however, have now become a new domestic army, mindlessly serving the will of the government which issues their paychecks, rather than the will of the people who provide the revenue to pay them, and whom they are sworn to serve and protect.

From the decision:
"the use of force by the arrestee was likely to result in greater injury to the person without preventing the arrest.”
Like the Borg of Star Trek fame, they have declared that "resistance is futile". We cannot prevent their actions, they proclaim; we can only be injured by resisting...

I know a group of men, now two centuries dead, who would strenuously disagree:
"If ye love wealth better than liberty, the tranquility of servitude than the animated contest of freedom, go from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that you were our countrymen!" -Samuel Adams
This sort of lawlessness is exactly the reason that right was enumerated in the Magna Carta, and why it has survived to this day: Because left unchecked, the authority of the government will enslave us.

See Part II for my open letter to Governor Daniels.
UPDATE: See Part III for the response to my letter from Gov. Daniels' office.
UPDATE: Indiana's legislature passed Senate Bill 1, authorizing the use of force against police officers. See Part IV for this development.