Thread: Indiana affirms 4th Amendment right to self protection

Indiana affirms 4th Amendment right to self protection


June 13, 2012 by ppjg


Marti Oakley Copyright 2012 All Rights Reserved
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In December of 2011, the Indiana Supreme Court issued a ruling so clearly unconstitutional, and one which was an outright assault on Constitutional protections and rights, that Indiana’s legislature passed a bill to void that ruling. Governor Mitch Daniels signed the bill in March of 2012. The new Indiana bill amends the 2006 Castle Doctrine bill. This doctrine validates the right of citizens to protect themselves using deadly force to stop illegal entry into their homes or cars, allowing them to self-defend even against unlawful acts of law enforcement.
Indiana‘s original “2006 Castle Doctrine” met with overwhelming, bipartisan support, passing 44-5 in the Senate and 81-10 in the House. The 2012 amendment to the 2006 Castle Doctrine was a result of the opinions issued last year by the Supreme’s in Indiana. The entire state nearly hurled at once behind this decision that included these statements:
“In sum, we hold that in Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.” Indiana Supreme Court Justice Steven David said,
“We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence.”
Does it make you wonder if this justice realized that he was acknowledging the unlawful (criminal) activity of law enforcement when he stated that the citizens no longer could defend themselves from these unlawful activities?
Indiana’s state government responded by amending the 2006 Castle Doctrine, reaffirming the right of citizens to self-defense to include specifically when law enforcement is acting unlawfully and is threatening bodily harm, or unlawful trespass under color of law, or no law at all.
From: Second Regular Session 117th General Assembly (2012)
SENATE ENROLLED ACT No. 1
AN ACT to amend the Indiana Code concerning criminal law and procedure.
(b) As used in this section, “public servant” means a person described in IC 35-41-1-17, IC 35-31.5-2-129, or IC 35-31.5-2-185.
(c) A person is justified in using reasonable force against another any other person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force.
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The balance of the amendment is brief and to the point. Circumstances as described by the Indiana Supreme Court, written to include exigent circumstances meant that even if the actions taken by law enforcement were beyond any sense of reasonableness, even if those circumstances were totally uncalled for, the citizen had no right to defend himself. To do so was not in line with the new “modern” interpretation of the Fourth Amendment.
The statement by justice Steven David to the effect that “modern” Fourth Amendment jurisprudence was incompatible with defending against unlawful entry makes me ask: Incompatible with what public policy? Where is the new and improved public policy that says law enforcement can unreasonably and without cause, due process and without penalty, terrorize you in your home threatening you and possibly your family?
Militarization of law enforcement
The militarization of local law enforcement has alarm bells going off across the country. With the exceptions of sheriff’s, who are elected by the public, law enforcement is now under Homeland Security and now considered a para- military force. Being trained by HSD and military counterparts, numerous local law enforcement agencies have become menaces to their respective communities. Many agencies are now using military tanks, drones and weapons as they morph from public servants to militarized units capable and willing to do great harm.
While psychological tests have been given to applicants for law enforcement for decades, in the past these tests were used to weed out potential risks that might not be readily apparent in the individual. These days, the psychological evaluation is to help the police department hire people who are psychologically suitable for the position of militarized police officer. With the growing violence and maliciousness of law enforcement agencies across the country, one has to wonder just what that criteria is.
The response of the State of Indiana to the unconstitutional and clearly malicious ruling of their own supreme court is being echoed in several other states. With the rise in violence committed under the color of law by several law enforcement agencies, several states have enacted Castle Doctrines, preserving the right of the individual to defend themselves against arbitrary, unreasonable and violent acts of aggression committed even by law enforcement.
The objections from law enforcement personnel over passage of these kinds of bills in the states is reflected in a statement from the president of the Indiana Sheriff’s Association:
“I’m not worried about the law-abiding citizens, It’s the ones that really don’t understand the law and they just think, ‘Cop shows up at my door, I can do whatever I want to him.’
Most law enforcement officers are not concerned these days with “law-abiding citizens”. In fact, they don’t care if you are law abiding or not.
We want our law enforcement agencies back!
Most of the public is still striving to hold their law enforcement officers in high esteem, giving them the respect they desire. But that respect is earned and cannot be achieved by violating rights, breaking into homes, terrorizing the public and violating basic civil rights without due process or evidence of wrong-doing. Police brutality, which is becoming all too frequent, is well documented. Military weapons, gear and uniforms on the streets of America does not inspire respect, but rather, fear and anger. We are not awed by the fire power or the realization that at any moment this same law enforcement agency could turn on us for any reason or no reason at all.

The “I can do whatever I want to him” mentality is the very one that is expressed by too many in law enforcement these days.
We need to reclaim our local law enforcement agencies as belonging to us, to our communities and end the adversarial stance created by HSD. We pay these people’s salaries, they come from our communities. We need to bring them back to being part of our communities instead of being separated from us by edicts from an unelected bureaucracy like HSD. Until this happens, the Castle Doctrines will continue to roll out across the country as state governments move to preserve and protect our right to self defense, even against arbitrary and misguided court rulings and rogue law enforcement.

You cannot claim the intent to enforce the law when you are simultaneously breaking the law, or many laws, yourself. Even if you have a badge or a black robe on.
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An exigent judiciary: Nothing supreme about Indiana
http://www.in.gov/judiciary/opinions...5121101shd.pdf
Enrolled Act, Senate Bill 0001
Q & A - Discover Policing
Castle Doctrines Passed
Castle Doctrine from State to State

States with strong Castle Doctrine and stand-your-ground laws include: Alabama, Arizona, Georgia, Indiana, Kentucky, Louisiana, Montana, Nevada, Oklahoma, South Carolina, Tennessee, Utah, and Washington.

Indiana affirms 4th Amendment right to self protection « The PPJ Gazette

Police officers put on notice in Indiana: If they illegally raid the wrong home, private citizens can shoot back

Friday, June 15, 2012 by: J. D. Heyes

(NaturalNews) Most of us are supportive of our local police departments but because of a lousy state Supreme Court decision in Indiana last year, residents of the state now have the right to shoot at officers in defense of their property if they believe they are being improperly raided.

Not surprisingly, most police officers are upset about the law, which was signed by Gov. Mitch Daniels in March, because they believe now it will be "open season" on law enforcement officers.

But supporters say the law will encourage nothing of the kind. They say its sole purpose is to allow homeowners the same rights they've always had - to defend their property with deadly force, if necessary, even if that means defending it against "public servants" who illegally enter homes and automobiles.

Here's how it all began.

Right to resist 'incompatible with modern Fourth Amendment jurisprudence'

Police were called to the home of a man and woman who were reportedly fighting outside of their apartment. The couple went back inside the apartment after police arrived, with the husband telling officers they were no longer needed.

An officer entered the apartment anyway, at which time the husband shoved him against a wall; a second officer then used a stun gun on the husband and arrested him.

In a March 2011 ruling, Indiana's highest court, in a 3-2 decision, said, essentially, that police officers had the right to enter a home for any reason, or for no reason at all, and a homeowner was powerless to stop them. The ruling, said some legal analysts, overturned hundreds of years' worth of common law which dated back to England's Magna Carta in 1215, granting homeowners a so-called "Castle Doctrine" right to protect their property.

"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," wrote Justice Steven David, for the majority. "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."

Much of the legal establishment agreed.

"It's not surprising that they would say there's no right to beat the hell out of the officer," Ivan Bodensteiner, a professor at Valparaiso University School of Law, told local media. "(The court is saying) we would rather opt on the side of saying if the police act wrongfully in entering your house your remedy is under law, to bring a civil action against the officer."

Like the majority of Supreme Court justices, however, Bodensteiner obviously doesn't see the irony in his claim - that Indiana residents would have had remedy in court against the improper actions of a police officer. That seems odd, considering the man upon whom the Supreme Court case was based lost.

The two dissenting justices - Robert Rucker and Brent Dickson - deferred to the U.S. Constitution's Fourth Amendment protections against unlawful searches and seizures, as well as the Bill of Rights' privacy protections.

'Unwarranted and unnecessarily broad'

"In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally -- that is, without the necessity of a warrant, consent or exigent circumstances," Rucker wrote for the minority. "I disagree."

They suggested if the court had limited its ruling to just allowing police to enter homes in a domestic violence case they would have supported the decision.

But, Dickson said, "The wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad."

Constitution be damned, opponents of the measure, especially police organizations, are crying foul.

"If I pull over a car and I walk up to it and the guy shoots me, he's going to say, 'Well, he was trying to illegally enter my property,'" 17-year veteran police Sgt. Joseph Hubbard, of the Jeffersonville, Ind., police department, said. "Somebody is going get away with killing a cop because of this law."

State Sen. Michael Young, author of the original legislation, disagrees. He says there is no widespread problem among Indiana residents wanting to take on police. And, he rightfully pointed out, the law would have been unnecessary were it not for the troubling Supreme Court ruling.

Sources for this article include:

http://www.allgov.com

Enrolled Act, Senate Bill 0001

NewsRoomAmerica.com - Indiana Law Allows Citizens to Shoot at Police

Police officers put on notice in Indiana: If they illegally raid the wrong home, private citizens can shoot back


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NRA-Backed Law Spells Out When Indianans May Open Fire on Police

By Mark Niquette - Jun 5, 2012 12:01 AM ET
201 Comments

Every time police Sergeant Joseph Hubbard stops a speeder or serves a search warrant, he says he worries suspects assume they can open fire -- without breaking the law.

Hubbard, a 17-year veteran of the police department in Jeffersonville, Indiana, says his apprehension stems from a state law approved this year that allows residents to use deadly force in response to the “unlawful intrusion” by a “public servant” to protect themselves and others, or their property.

Patrick Fallon/Bloomberg Indiana Governor Mitch Daniels

Indiana Governor Mitch Daniels signed a state law this year that allows residents to use deadly force in response to the “unlawful intrusion” by a “public servant” to protect themselves and others, or their property.

“If I pull over a car and I walk up to it and the guy shoots me, he’s going to say, ‘Well, he was trying to illegally enter my property,’” said Hubbard, 40, who is president of Jeffersonville Fraternal Order of Police Lodge 100.

“Somebody is going get away with killing a cop because of this law.”

Indiana is the first U.S. state to specifically allow force against officers, according to the Association of Prosecuting Attorneys in Washington, which represents and supports prosecutors. The National Rifle Association pushed for the law, saying an unfavorable court decision made the need clear and that it would allow homeowners to defend themselves during a violent, unjustified attack. Police lobbied against it.

The NRA, a membership group that says it’s widely recognized as a “major political force” and as the country’s “foremost defender” of Second Amendment rights, has worked to spread permissive gun laws around the country. Among them is the Stand Your Ground self-defense measure in Florida, which generated nationwide controversy after the Feb. 26 shooting of Trayvon Martin, an unarmed Florida teenager.

Amended Law

Asked about the Indiana law, Andrew Arulanandam, a spokesman for the Fairfax, Virginia-based association, said he would look into the matter. He didn’t return subsequent calls.

The measure was approved by the Republican-controlled Legislature and signed by Republican Governor Mitch Daniels in March. It amended a 2006 so-called Castle Doctrine bill that allows deadly force to stop illegal entry into a home or car.

The law describes the ability to use force to “protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force.”

Republican state Senator R. Michael Young, the bill’s author, said there haven’t been any cases in which suspects have used the law to justify shooting police.

‘Public Servant’

He said “public servant” was added to clarify the law after a state Supreme Court ruling last year that “there is no right to reasonably resist unlawful entry by police officers.” The case was based on a man charged with assaulting an officer during a domestic-violence call.

Young cited a hypothetical situation of a homeowner returning to see an officer raping his daughter or wife. Under the court’s ruling, the homeowner could not touch the officer and only file a lawsuit later, he said. Young said he devised the idea for the law after the court ruling.

“There are bad legislators,” Young said. “There are bad clergy, bad doctors, bad teachers, and it’s these officers that we’re concerned about that when they act outside their scope and duty that the individual ought to have a right to protect themselves.”

Bill supporters tried to accommodate police by adding specific requirements that might justify force, and by replacing “law enforcement officer” in the original version with “public servant,” said Republican state Representative Jud McMillin, the House sponsor.

Preventing Injury

The measure requires those using force to “reasonably believe” a law-enforcement officer is acting illegally and that it’s needed to prevent “serious bodily injury,” Daniels said in a statement when he signed the law.

“In the real world, there will almost never be a situation in which these extremely narrow conditions are met,” Daniels said. “This law is not an invitation to use violence or force against law enforcement officers.”
Jane Jankowski, a spokeswoman for Daniels, referred questions about the measure to that statement.

Opponents see a potential for mistakes and abuse.

It’s not clear under the law whether an officer acting in good faith could be legally shot for mistakenly kicking down the wrong door to serve a warrant, said state Senator Tim Lanane, the assistant Democratic leader and an attorney.

“It’s a risky proposition that we set up here,” Lanane said.

Intoxicated Suspects

Those who are intoxicated or emotional can’t decide whether police are acting legally, and suspects may assume they have the right to attack officers, said Tim Downs, president of the Indiana State Fraternal Order of Police. The law didn’t need to be changed because there isn’t an epidemic of rogue police in Indiana, he said.

“It’s just a recipe for disaster,” said Downs, chief of the Lake County police in northwest Indiana. “It just puts a bounty on our heads.”

Downs said he canceled his NRA membership after the organization pressed for the Indiana legislation.

The NRA helped get the measure through the Legislature and encouraged its members to contact lawmakers and Daniels.

The organization’s Indiana lobbyist attended all the Legislative committee hearings, said State Representative Linda Lawson, the Democratic floor leader and a former police officer.

Political Support

Lawmakers respond to the NRA because the group brings political support, Lawson said.

The legislation reversed an “activist court decision,” and “restores self-defense laws to what they were,” the NRA said on its legislative website.

In Clay County, Indiana, outside Terre Haute, the Sheriff’s Department changed its procedures because of the law. Detectives in plain clothes and unmarked cars now must be accompanied by a uniformed officer on calls to homes, Sheriff Michael Heaton said.

“I’m not worried about the law-abiding citizens,” said Heaton, who also is president of the Indiana Sheriff’s Association. “It’s the ones that really don’t understand the law and they just think, ‘Cop shows up at my door, I can do whatever I want to him.’”

Hubbard, the officer in Jeffersonville, in southeastern Indiana, said the law causes him to second-guess himself. He serves on the department’s patrol division and is a member of its special weapons and tactics unit. The department serves “thousand” of warrants a year, he said.

“It puts doubt in your mind,” said Hubbard, who served in the U.S. Marine Corps before joining the department. “And hesitation in our job can mean somebody gets hurt or killed.”

Hubbard said he hasn’t changed his approach to his job or noticed a difference in how civilians he encounters are behaving.

The law has changed Hubbard’s view of the NRA.

He said he has been “a proud member of the NRA for years,” and while he’s still a member and NRA firearms instructor, “the day I found out the NRA was pushing behind this bill was the day I became a not-so-happy NRA member.”

To contact the reporter on this story: Mark Niquette in Columbus, Ohio, at mniquette@bloomberg.net
To contact the editor responsible for this story: Stephen Merelman at smerelman@bloomberg.net

NRA-Backed Law Spells Out When Indianans May Open Fire on Police - Bloomberg