I can only hope--emphasis hope--that a) this gets appealed to SCOTUS (which does have jurisdiction, since the decision was founded in the Fourth Amendment, not the Indiana State Constitution--gah, shut up Fed Courts brain, I took that exam already), b) they take the case (certiorari--shut up shut up), and c) they reverse.
The issue is the use of force. That the guy in this case only attacked the cop with his fists doesn't mean a ruling would be limited to fists, or that a "fists are okay, guns aren't" policy could hold up.
This decision wasn't founded on "thinking the police lack probable cause," is the problem.
Regardless of the facts of the case, and I think that in this case the facts actually support the police entry (arguably, they were checking on the well-being of the wife, who had just been seen arguing with her husband; then the husband says "you don't need to come in"? That smells like probable cause to me just to confirm the wife's all right, under the community caretaking doctrine), the decision is rather ridiculously overbroad.
I want SCOTUS to reverse, on the grounds that there is a right to refuse police entry into the home if the entry is not grounded on sufficient probable cause, and then remand for the issue of whether the police had cause.
Of course, my statement above makes me wonder why the cops didn't claim they had probable cause. I guess I could find out...but I don't want to, because god damn it, exams are almost over.
The cops say they have probable cause; the homeowner thinks it's lacking. (That's not how he'd phrase it, but go with me here.) Under the doctrine that there is a right to refuse entry, if the homeowner were correct, he'd be entitled (depending on the self-defense laws of the state) to shoot the cops as trespassers. If the cops were correct, and the homeowner shot, that would be attempted murder and then some. Puts a hell of a tense angle on every cop/homeowner confrontation. The Indiana Supreme Court is saying that the remedy for an entry without cause is not shooting the cop (or otherwise resisting trespass), but a Section 1983 action for the cops violating your civil rights. Thing is--that remedy isn't as good as it should be, in my (admittedly limited but nonzero) experience.
What I would like is for the cops to never attempt to enter a home unless they had probable cause, and for homeowners to never refuse because they knew the cops had probable cause (and for that matter because they hadn't done anything wrong, which granted would remove the need for the cops to enter anyway), but then, I'd also like an end to disease and death and for the Cubs to win the World Series. (Well, no. I don't care about the Cubs. But I think an end to disease and death will happen first.)
It's a situation where there's no perfectly satisfying ruling. That tends to happen when it's based in public policy. Yeah, 1983 needs to be stronger, and yeah, cops shouldn't try to enter a home without rock solid probably cause.
But ultimately, whether you assume good faith or bad faith on either side, the situation will arise where the cops want to enter and the homeowner doesn't think they have the right to. And in that situation, the Court is deciding that it's good public policy to tell homeowners to sue the cops instead of shooting them. Which as opinions go is kind of hard to disagree with
If I felt that the cops wouldn't fall all over themselves to abuse this new right, coupled with feeling that 1983 wasn't so toothless, I might agree.
If the cops have the right to enter at any time, homeowners had better have the right to sue them, and their department, and their municipality, if they so much as set a toe across the threshold without probable cause. Lacking that...well. Now we're basically leaving no real recourse for homeowners. I'd rather see homeowners sue than shoot. But now they really can't do either.
**Unrelated, Texas [House] has [passed a mostly symbolic measure that the media pretends has] removed the Trouser Search Administration's immunity to prosecution for sexually assualting travellers [but in actuality is worthless unless it also passes in the Texas Senate and is signed into law by the Texas governor, and even then is probably not going to be legal because State law does not apply to Federal agencies].
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(no subject)
Date: 2011-05-13 08:50 pm (UTC)(no subject)
Date: 2011-05-13 10:44 pm (UTC)(no subject)
Date: 2011-05-13 10:46 pm (UTC)(no subject)
Date: 2011-05-13 10:49 pm (UTC)(no subject)
Date: 2011-05-13 10:58 pm (UTC)(no subject)
Date: 2011-05-13 10:49 pm (UTC)Regardless of the facts of the case, and I think that in this case the facts actually support the police entry (arguably, they were checking on the well-being of the wife, who had just been seen arguing with her husband; then the husband says "you don't need to come in"? That smells like probable cause to me just to confirm the wife's all right, under the community caretaking doctrine), the decision is rather ridiculously overbroad.
I want SCOTUS to reverse, on the grounds that there is a right to refuse police entry into the home if the entry is not grounded on sufficient probable cause, and then remand for the issue of whether the police had cause.
Of course, my statement above makes me wonder why the cops didn't claim they had probable cause. I guess I could find out...but I don't want to, because god damn it, exams are almost over.
(no subject)
Date: 2011-05-13 10:56 pm (UTC)The cops say they have probable cause; the homeowner thinks it's lacking. (That's not how he'd phrase it, but go with me here.) Under the doctrine that there is a right to refuse entry, if the homeowner were correct, he'd be entitled (depending on the self-defense laws of the state) to shoot the cops as trespassers. If the cops were correct, and the homeowner shot, that would be attempted murder and then some. Puts a hell of a tense angle on every cop/homeowner confrontation. The Indiana Supreme Court is saying that the remedy for an entry without cause is not shooting the cop (or otherwise resisting trespass), but a Section 1983 action for the cops violating your civil rights. Thing is--that remedy isn't as good as it should be, in my (admittedly limited but nonzero) experience.
What I would like is for the cops to never attempt to enter a home unless they had probable cause, and for homeowners to never refuse because they knew the cops had probable cause (and for that matter because they hadn't done anything wrong, which granted would remove the need for the cops to enter anyway), but then, I'd also like an end to disease and death and for the Cubs to win the World Series. (Well, no. I don't care about the Cubs. But I think an end to disease and death will happen first.)
(no subject)
Date: 2011-05-13 11:08 pm (UTC)But ultimately, whether you assume good faith or bad faith on either side, the situation will arise where the cops want to enter and the homeowner doesn't think they have the right to. And in that situation, the Court is deciding that it's good public policy to tell homeowners to sue the cops instead of shooting them. Which as opinions go is kind of hard to disagree with
(no subject)
Date: 2011-05-13 11:12 pm (UTC)If the cops have the right to enter at any time, homeowners had better have the right to sue them, and their department, and their municipality, if they so much as set a toe across the threshold without probable cause. Lacking that...well. Now we're basically leaving no real recourse for homeowners. I'd rather see homeowners sue than shoot. But now they really can't do either.
(no subject)
Date: 2011-05-13 10:57 pm (UTC)I can not wait to get out of here.
(no subject)
Date: 2011-05-14 02:54 am (UTC)(no subject)
Date: 2011-05-15 01:51 am (UTC)There, fixed that for you.