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Your 4th amendment is gone. At least in Indiana. Where next?

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posted on May, 13 2011 @ 02:02 PM
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First here is a link to the Court's opinion for those interested going to the source and not wholly trusting news outlets for their reporting.

RICHARD L. BARNES v STATE OF INDIANA

To give the whole picture and the article does a fairly decent job is Mr. Barnes was contesting that his battery conviction from the connected trial case should not be able to hold legal grounds because the jury was not advised on the defendants "right to reasonably resist unlawful entry by police officers".

Following a 'domestic depute" call, Officer Reed was the first to respond. Upon arriving on the scene, he found Mr. Barnes outside of his apartment carrying a bag. Obviously at this point, being in an argument with his wife Mary, Mr. Barnes was probably heated.

The court shows that Mr. Barnes became agitated and was yelling at the officer even after he was informed that he could be arrested for "disorderly conduct". That of course is a discussion for another time, but the officer was apparently trying to gain control of the situation. There was a point that Mr. Barnes informed the officer he was no longer needed, but in my opinion, Mr. Barnes was not the person who called 9-11 and therefore couldn't really make that claim.

Following the confrontation outside, Mary came out and "threw a black duffle bag in Barnes‘s direction" and told him to "take the rest of his stuff". She returned to the apartment, but she also invited her husband back into the apartment by telling him to get the rest of his stuff.

This is when the battery occurred. After reentering his apartment, the officers tried to follow in and "investigate". Mr. Barnes told them that they were not allowed and blocked the door way. The court shows Mary gave no explicit invitation for the officers to enter, but reportedly said "don‘t do this" and "just let them in."

Than, Officer Reed forced his way into the apartment and Mr. Barnes pushed Officer Reed against the wall. Mr. Barnes was taken down by a choker hold and taser.

During his trial, Mr. Barnes attempted to instruct the jury that a citizen has a reasonable right to resist unlawful entry, but was overruled by the sitting judge and the jury was instructed that there was none. Mr. Barnes was found guilty of his crimes.

--------------

So there is whole context of the situation. Now, the specifics of the Indiana Supreme Court opinion.

What is amazing is giving the history of the common-law right to reasonably resist unlawful entry and arrest, the Indiana Supreme Court cites two United States Supreme Court cases that upheld that very right. Bad Elk v United States (1900) and United States v Di Re (1948).

Each respectively upheld the common-law practice that "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" and "One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases".

The Court did offer counter-arguments to these two cases involving our highest court in the form of lower court rulings and legal scholarly writings. The court also referred to outside states that have 'abolished the right' because of modern thinking that the expectation of individual liberty no longer outweighs public safety. (Note: This is not legal opinion but rather from a work of the scholars Hemmens & Levin)


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.


Those are the exact words of opinion from the Court. For context, even though I know most of you here know the Fourth Amendment, it reads"


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.


Where the argument can play out, and the Court did not address is what is "unreasonable searches and seizures". This of course, I would hope Mr. Barnes would escalate to the highest court and have the Supreme Court weigh in on. Not merely for his arguments, but because of the Indiana Supreme Court ruling effectively abolishing a common-law right from the bench without weighing the possible implications.

The rest of the opinion, which I implore you all to read goes on to detail the summary of evidence. I think Mr. Barnes should up channel this to the Supreme Court of the United States because of the initial charge; Battery of an Officer. There the court ruled that Mr. Barnes, who does not deny shoving the officer into the wall, was not in his right to be secure in his personal property and effects.

The dissenting views would have still held Mr. Barnes I believe on his charges, but their views were in protection of the wholesale destruction of the common-law practice that Indiana was still using. The best dissension of the opinion I believe is the following:


But 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.
and goes on to say:


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.


In Payton v New York, the Supreme Court held that "The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest."

Yet Indiana decided to completely destroy the common-law practice, rather than apply a narrow ruling and opinion on the matter at hand and in turn, eroded the citizen's rights of Indiana in regards to the Fourth Amendment.




posted on May, 13 2011 @ 02:11 PM
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where i live the war on cops already started over stuff like this and more...

any volunteers?
edit on 13-5-2011 by violence=answer because: (no reason given)



posted on May, 13 2011 @ 02:40 PM
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reply to post by violence=answer
 


The war needs to be at the voting booth. We have to quit electing folks that just want the job for the power, and elect some officials that know its time to do the hard things and get the country back to its roots. It took many years to get us where we are now, and it wont be fast to get back, but it all starts at the polls.



posted on May, 13 2011 @ 02:47 PM
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reply to post by ownbestenemy
 


Very good post. Thanks for finding the details of the case.



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.


The ruling is just mind boggling and the dissenting comment above sums it up.



posted on May, 13 2011 @ 03:26 PM
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reply to post by EssenceOfSilence
 


if voting changed anything it would be illegal.

every time i hear of police brutality,
abuse of power,
and color of law,

it always ends in the same way,

they get away with it.

voting and petitions very rarely change anything especially in matters like this.

and with their pushing, its just a matter of time before people push back.



posted on May, 13 2011 @ 03:42 PM
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Originally posted by EssenceOfSilence
reply to post by violence=answer
 


The war needs to be at the voting booth. We have to quit electing folks that just want the job for the power, and elect some officials that know its time to do the hard things and get the country back to its roots. It took many years to get us where we are now, and it wont be fast to get back, but it all starts at the polls.


Ha! Yeah, right.

Voting booth. Thats how things get changed for the better. Countries gain independence and citizens gain freedom because they all get together and check tally marks on slips of paper.

We dont live in that world anymore. Youre arguing using nostalgia from a time decades ago.



posted on May, 13 2011 @ 05:06 PM
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"Oh my! Someone is illegally entering my home! I must do something about it!"

BOOMBOOMBOOM

"Oh, I'm so sorry! He was breaking into my home and I was afraid for my family's life, so I had to shoot him!"

/TOA



posted on May, 13 2011 @ 05:12 PM
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Originally posted by g146541
reply to post by EssenceOfSilence
 


Ummm, this was not an unlawful entry.
Even though the media article says so.
The police went to investigate a domestic disturbance and the male occupant would not allow entry.
Seems suspicious, and there is much more i would like to know but, if "Scare em all Al Jines" says so....
People stop watching Al, all you get out of it is propaganda and fear.




Probable cause.

Let us in...you say yes...we go in.

Let us in...you say no...probable cause...we go in.



posted on May, 13 2011 @ 06:51 PM
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reply to post by EssenceOfSilence
 



Originally posted by g146541


Ummm, this was not an unlawful entry.
Even though the media article says so.
The police went to investigate a domestic disturbance and the male occupant would not allow entry.
Seems suspicious, and there is much more i would like to know but, if "Scare em all Al Jines" says so....
People stop watching Al, all you get out of it is propaganda and fear.


When a 911 call is placed, Officers are allowed the ability to ensure peoples safety. A call for a Domestic is no different, and generally speaking, they cannot refuse entrance by law enforcement. I have had a few cases of that, and I explain I am required by law to check all parties and investigate the call. Some states will be different, but generally speaking domestic violence laws are pretty clear on this point. There is no 4th amendment violation since a search is limited to safety of an individual, and falls under exigent circumstances (forcing entrance for a medical emergency, house on fire, etc).

The 4th amendment does not apply to the individual, it applies to the Government and its agents, namely those acting under color of law. There are clear exceptions to the 4th amendment requirements, namely plain sight contraband, search incident to arrest, and consent. In this case, the officers were there legally and were investigating a potential crime, which means neither party had any basis to send the police away.

Since a domestic was occuring, the moment they both went back inside the house, the officers can articulate safety reasons they should not be alone together.
edit on 13-5-2011 by Xcathdra because: (no reason given)



posted on May, 13 2011 @ 07:33 PM
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reply to post by Xcathdra
 


And that is why I contend in a very similar thread regarding the same topic that the officers on scene botched this and I am very surprised the defense in the original trial didn't bring it up.

Both parties were outside at one point. They knew the call was a 'domestic disturbance'. That stated, why didn't they handle it at that point?



posted on May, 13 2011 @ 09:07 PM
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Originally posted by ownbestenemy
reply to post by Xcathdra
 


And that is why I contend in a very similar thread regarding the same topic that the officers on scene botched this and I am very surprised the defense in the original trial didn't bring it up.

Both parties were outside at one point. They knew the call was a 'domestic disturbance'. That stated, why didn't they handle it at that point?


They did.. The guy was leaving for the night. When he went back inside for whatever reason, the call is still ongoing and not resolved. The function of the officers at that point is to protect the safety of both parties, which means being present while they are in proximity to each other. If the fight between the 2 was loud / vuiolent enough to have a 3rd party call the police, then logic would suggest that another blowup is a possibility.

By allowing them to be in the house together without the officers present, its not out of the realm of possibility for a physical fightt to break out again, or worse the situation could escalate to the death of one of the parties involved.

Based on the type of call, Officers are not violating the 4th amendment of either party involved. In addition to the above, the safety of the officers is also a consideration.



posted on May, 13 2011 @ 09:16 PM
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Originally posted by MockedUnicorn

Originally posted by EssenceOfSilence
reply to post by violence=answer
 


The war needs to be at the voting booth. We have to quit electing folks that just want the job for the power, and elect some officials that know its time to do the hard things and get the country back to its roots. It took many years to get us where we are now, and it wont be fast to get back, but it all starts at the polls.


Ha! Yeah, right.

Voting booth. Thats how things get changed for the better. Countries gain independence and citizens gain freedom because they all get together and check tally marks on slips of paper.

We dont live in that world anymore. Youre arguing using nostalgia from a time decades ago.


Why you guys don't see is the Globalist have plan for those who want to take it to the streets. They have marshall law and multiple countries lined up to implement it when our troops won't. Violently protesting will only get you in fema camp or in a fema black bag, it wont get our liberties back.

In order to get them back, we have to take them back in reverse of how they were lost. We have to elect leaders who will make the hard decisions on the economy, repeal the regulations, etc etc. It will take time to do this and will be painful. It's time to pay the fiddler even if we did not get to dance.

Government has gotten too big and has gotten almost 51% of the population on the take. We have to get folks off the government payroll and dependency list so they have a reason not to support the big government agenda.

The last right to go before we are all slaves is the second amendment. When that one is gone, then we will have no choice but to take your path to try and keep our freedom. Until then we have to beat them at their own game, fight the regulation, stop the spending, stop the taxes, get folks to be self sufficient and get off the government wagon.



posted on May, 13 2011 @ 10:03 PM
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So they ruled this because police couldn't break up a domestic dispute.

Police can enter your house in an emergency, that was established years ago, why violate the fourth amendment? If the husband was beating his wife or holding her against her will when the cops arrived, they could legally enter with no problems.



posted on May, 22 2011 @ 02:18 PM
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Originally posted by Xcathdra
If the fight between the 2 was loud / vuiolent enough to have a 3rd party call the police, then logic would suggest that another blowup is a possibility.


Did you even read the opinion or testimony? Apparently not because it was not a 3rd party that called. The wife originally tried to call her sister but was unsuccessful. She then called 9-11. According to the testimony is was not in fear of danger, but rather an escalating situation.



By allowing them to be in the house together without the officers present, its not out of the realm of possibility for a physical fightt to break out again, or worse the situation could escalate to the death of one of the parties involved.


You are making excuses here Xcath. When the first officer arrived on the scene, he confronted the husband. Given that he was in an argument with his wife (not ex wife) just prior to arriving, the husband was agitated. The officer I believe took control of that very well.

At that point, the wife came outside with more of the husbands possessions. It was at that point the officer could have handled the situation. Both parties are outside. The wife was in no obvious danger and even told her husband to get the rest of his stuff from the home.

The failure is on the officer here and the courts used it to strike down centuries of common-law practice in the name of the "safety" of the officers. What about the safety of the citizen? Come on Xcan...I know you tow the line here but can you really say that nothing was violated in terms of the citizen's rights?

The court agreed that the husband was in the wrong with regards to how he handled the situation with the officer. They did not however agree that this warranted the wholesale abolishment of a person's right to resist unlawful entry/arrest in the state of Indiana.

Based on the type of call, Officers are not violating the 4th amendment of either party involved. In addition to the above, the safety of the officers is also a consideration.



posted on May, 22 2011 @ 02:26 PM
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I'm not worried, probably won't be enforced.



posted on May, 22 2011 @ 03:28 PM
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reply to post by ownbestenemy
 


You beat me to the punch linking this pdf, lol.
While there may be a cause for concern with SOME police acting above the law, I don't think this is the case to bring to light. Read that pdf and see why. The 4th Amendment is not in danger because of this ruling. If it is in danger than a better case needs to be found.



posted on May, 22 2011 @ 03:35 PM
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reply to post by ownbestenemy
 


I did read the article, and I stand by what I have said. The officers received a call for service, which in this case was a domestic. The argument continued in front of the officers when the woman brought his stuff outside.

The guy cannot prevent the officers from entering the house - period.

The officers are responsible for the safety of both parties, as well as themselves and any 3rd party bystanders who might be around watching.

While I respect your opinion, I am explaining to you how this scenario works for law enforcement.

As far as the Supreme Court decision goes, I have already stated there I dont agree with it. To me it looks like a court mandated violation of a persons civil rights.



posted on May, 22 2011 @ 04:57 PM
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I live in Indiana and a protest is happening at the state house next Wednesday. I am going. I believe this is a direct violation of our constitution, and I also believe that the officer did not have the right to enter the home. There was no violence and from all descriptions it seems as though it was the tail end of the encounter and they were just trying to part ways at that point. The officer could have waited outside. They didn't invite him in and they obviously weren't violent at that point which means it wasn't an emergency and he therefore had no right to go into the premises for the protection of the individuals in question. To say otherwise is bull# imo...sounds like people are tying to make excuses for what was obviously an improper use of authority. I agree that an officer has a right to go into a place without an invitation or a warrant in the correct circumstances. I do not believe this instance falls into that category.
edit on 22-5-2011 by GrimReaper86 because: (no reason given)



posted on May, 22 2011 @ 05:35 PM
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reply to post by GrimReaper86
 


The fact the officers were called suggests something occured that got the attention of a party. The fact that party called suggests a situation that was viewed as being potentially dangerous or violent.

The Officers are responsible for the safety of those people involved. They were called because of a Domestic, which is to say the 2 parties could not get along in the same house, which is why the guy was outside and why the female took some of clothes and told him to leave.

The Officer has every right under law to enter the residence when the guy went back in. They fought prior to the police being called, and they fought when the police were on scene, exchaning words. There is no certain way to show that the 2 people would not have killed each other had the officers not entered the house behind him.

While I understand some peoples points of view on this, some of you guys are not grasping how laws work, in addition to the 4th amendment. The 4th is not black and white as some of you think it is, and does not apply to this situation.


Exigent Circumstances

There are also "exigent circumstances" exceptions to the warrant requirement. Exigent circumstances arise when the law enforcement officers have reasonable grounds to believe that there is an immediate need to protect their lives, the lives of others, their property, or that of others, the search is not motivated by an intent to arrest and seize evidence, and there is some reasonable basis, to associate an emergency with the area or place to be searched.[65]


Both parties had been identified, and the evidnce present suggests a domestic violence situation took place. The officers are within their right to conduct their investigation. The officers cannot be prevented from entering the house. Technically speaking if the domestic occured in the house, the house could be the crime scene.

Are there broken doors, damaged furniture, damaged walls, signs of a struggle present, weapons out, drugs out, etc etc etc.

Lots of factors and other laws to take into account.



posted on May, 24 2011 @ 05:31 AM
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reply to post by Xcathdra
 


The decision aside; the officers on the scene had ample amount of opportunity to control the situation. Yet they didn't. They calmed the husband down, but there was now testimony regarding the situation beyond forceful entry into their home.

Again, I know it is arm-chair quarterbacking, but why didn't the officers handle the situation when both parties were present outside? They allowed to to go back to a private residence. Tell me, what do you think a private citizen would do in that situation>



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