In most states this law is overruled by statute. Howeever in Indiana it was overruled by their Supreme Court.
The Indiana Supreme Court ruled 3–2 that there is no such right to resist unlawful police entry into the home. From the opinion:
"The English common-law right to resist unlawful police action existed for over three hundred years, and some scholars trace its origin to the Magna
Carta in 1215. Craig Hemmens & Daniel Levin, “Not a Law at All”: A Call for the Return to the Common Law Right to Resist Unlawful Arrest, 29 Sw.
U. L. Rev. 1, 9 (1999). The United States Supreme Court recognized this right in Bad Elk v. United States, 177 U.S. 529, 535 (1900): “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.” The Supreme Court has affirmed this right as recently as 1948. United States v. Di Re, 332 U.S. 581,
594 (1948) (“One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases.”).
In the 1920s, legal scholarship began criticizing the right as valuing individual liberty over physical security of the officers. Hemmens & Levin,
supra, at 18. One scholar noted that the common-law right came from a time where “resistance to an arrest by a peace officer did not involve the
serious dangers it does today.” Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942). The Model Penal Code eliminated the right on
two grounds: “(1) the development of alternate remedies for an aggrieved arrestee, and (2) the use of force by the arrestee was likely to result in
greater injury to the person without preventing the arrest.” Hemmens & Levin, supra, at 23. In response to this criticism, a majority of states have
abolished the right via statutes in the 1940s and judicial opinions in the 1960s. Id. at 24–25. . .
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. 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). 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— as evident by the facts of this instant case. E.g., Hobson, 577 N.W.2d at 836 (“But in arrest
situations that are often ripe for rapid escalation, one‘s ̳measured‘ response may fast become excessive.”).
Further, we note that a warrant is not necessary for every entry into a home. For example, officers may enter the home if they are in “hot
pursuit” of the arrestee or if exigent circumstances justified the entry. E.g., United States v. Santana, 427 U.S. 38, 42–43 (1976) (holding that
retreat into a defendant‘s house could not thwart an otherwise proper arrest made in the course of a ―hot pursuit‖); Holder v. State, 847 N.E.2d
930, 938 (Ind. 2006) (“Possible imminent destruction of evidence is one exigent circumstance that may justify a warrantless entry into a home if the
fear on the part of the police that the evidence was immediately about to be destroyed is objectively reasonable.”). Even with a warrant, officers
may have acted in good faith in entering a home, only to find later that their entry was in error. E.g., Arizona v. Evans, 514 U.S. 1, 11 (1994);
United States v. Leon, 468 U.S. 897, 922–25 (1984). In these situations, we find it unwise to allow a homeowner to adjudge the legality of police
conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to
batter a police officer as a part of that resistance."
indianacourts.us...edit on 16-1-2012 by maluminse because: add quotes
