Wednesday, May 18, 2011

The coming darkness

Okay, this is from several days ago but I haven't seen it get much attention and it really does boggle the mind and really really does deserve notice. It's from this past Thursday, when the Indianapolis Star reported this:
People have no right to resist if police officers illegally enter their home, the Indiana Supreme Court ruled in a decision that overturns centuries of common law.
That's right: The state supreme court of Indiana has ruled that if police illegally force their way into your home, you have no right to resist. You must stand aside and allow them to do it.

Say what?

There must have been some good reason, there must have been. So what was the reasoning, what was the powerful, overwhelming logic that drove the court to "overturn centuries of common law?" Well, here's one part (and hold on for the second part; it's even better):

The court argued that "allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved." Note that it doesn't say that the way to avoid "unnecessarily escalat[ing] the level of violence" is for the cops to follow the law, to follow the rules, no no no; rather, it is for you to passively submit when they break the law and ignore the rules.

And what's your recourse? Sue the cops, says the court.


Yeah, seriously. That's the remedy.

In what higher dimension?

So if cops illegally force their way into your home your only recourse is to sue them - assuming you can even bear the costs involved in pursuing such a suit and by some combination of miracles you have both a judge who isn't going to dismiss on a "good faith" defense (the "Gee, I thought I could" defense) and a jury that won't be swayed by "Do you want your police to be second-guessing themselves when they're out there every day, risking their lives, to protect you and your children from the criminals, rapists, and terrorists? Well, do you?" That's your recourse.

Yeah, I'm sure that will be a real deterrent.

Oh, but there's still the second part, and yes, it's even better:
"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," [Justice Steven] David said.
Leave aside the creepy notion that it can be legitimate "public policy" to ignore your rights and get to the meat. Because, yup, you got it: According to the Indiana Supreme Court, our "modern" legal understanding of the Fourth Amendment says you have no right to resist an "unlawful police entry" into your home.

You have no right to resist illegal actions by police. You have no right to resist abusive state power. Oh, you have a "right" to "protest" after the fact, provided, again, that you have the considerable sums of money required to file such a protest - but no right to resist. Instead, our "modern Fourth Amendment jurisprudence" says, you must submit.

And even if you have the fortuitous combination of finances, judge, and jury necessary to make you whole, what of all the others who don't? Power given to the state is power given over all, over everyone. Recourse for the one is recourse just for the one and for no one else. And that is exactly what the court has established here.

This is very bad - especially as state supreme courts often look to decisions of other state supreme courts for guidance. Yes, this is very bad.

Footnote Eins: It was a big week for the Indy Supremes. Two days before that decision, that is, last Tuesday, the court ruled that cops serving a warrant may enter a home without knocking if they decide circumstances justify it. Previously, they needed a judge's permission; they needed, that is, a so-called "no-knock" warrant.

Now, they don't and they can decide for themselves without any oversight. Which means that now, in Indiana, this would be fine.

I remember back in the I'm pretty sure it was the Nixon administration when "no-knock" warrants were first discussed - and the whole idea was regarded as controversial. Now, it's just another day at the office - or, rather, the police station.

Footnote Zwei: The only hopeful sign in this was that comments at the IndyStar site about the article were all but universally negative and often harshly so.

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