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May 20, 2011
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Ind. Supreme Court ruling on illegal police entry sparks protest

Court's 3-2 ruling brought Indiana law in line with most other states, but critics claim constitutional infringement

Associated Press

INDIANAPOLIS - An Indiana Supreme Court ruling that people don't have the right to resist police officers who enter their homes illegally has sparked outrage among some residents and lawmakers, with plans under way for a large Statehouse protest, a flurry of threats made against police and judges and calls for the state to reinforce homeowners' rights.

The court's 3-2 ruling last week brought Indiana law in line with most other states', but critics contend that it infringes on their constitutional rights and contradicts centuries of common law precedent regarding homeowners' rights and the limits of police power.

"We're by and large outraged by it. It pretty much wipes out the Fourth Amendment," Greg Fettig, a co-founder of the Hoosier Patriots tea party group, said Wednesday. "Police can come into your house and do whatever they want now."

Police are investigating several threatening emails and phone calls directed at the state Supreme Court because of the ruling, court spokeswoman Kathryn Dolan said. She declined to say how many threats the court received, but said most of them were aimed at police officers.

"This opinion sparked more debate than other opinions we've handed down," Dolan said.

By Thursday, more than 1,000 people had signed on to attend a May 25 Statehouse rally against the ruling that was promoted on a Facebook page. Another Facebook page dedicated to overturning the ruling had more than 400 followers. A YouTube video criticizing the ruling was also posted.

State Sen. Mike Young, R-Indianapolis, said he would work on legislation to strengthen Indiana's self-defense law and clarify that Hoosiers have a right to resist unlawful entry, even by police.

"Our forefathers fought for a right to live freely without fear of unwarranted intrusion by an oppressive government," Young said in a news release. "Certainly times have changed since then, but this right is among the most basic we have and should not be tampered with in any way."

Erin Berger, the attorney who represents the man who was convicted of misdemeanor resisting law enforcement for shoving an officer, said she will petition the state Supreme Court for a rehearing. She said lawyers from throughout the country have offered to help her, and that an appeal to the U.S. Supreme Court was possible.

"I think that the public is concerned that we have now lost a lot of our Fourth Amendment rights to feel secure in our homes. And I think that's probably the root of most of the concern that we're seeing," Berger said.

The ruling dealt with narrow circumstances in which an Evansville man blocked and then shoved a police officer who tried to enter his home without a warrant after his wife called 911 during an argument with her husband. The man was shocked with a stun gun and arrested. His wife told officers he hadn't hit her.

The two dissenting justices said the resulting decision was too broad and contradicted the Fourth Amendment against unreasonable search and seizure.

"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," wrote Justice Robert Rucker.

The court held that residents can't resist police who enter their home for whatever reason, and a civil lawsuit is their only alternative. The state Supreme Court said it would be safer for all concerned to let police proceed even with an illegal action and sort it out later in court.

"In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment," wrote Justice Steven David, who was appointed in September by Republican Gov. Mitch Daniels.

Fettig said some tea partiers were questioning the wisdom of David's appointment after last week's ruling, and some conservative bloggers hinted the furor might dim Daniels' chances with social conservatives as he considers a run for the White House.

Daniels said Wednesday he hadn't yet read the whole ruling, but added, "I think it's a little more reassuring when you read the court's reasoning, but I don't have a view beyond that."

Ivan Bodensteiner, a professor at the Valparaiso University School of Law, said that the decision brings Indiana law in line with that of about 40 other states that don't recognize the common-law right to resist illegal police entry. Although he acknowledged the ruling was broad, Bodensteiner said it really didn't conflict with the Constitution.

"It's not a license for police to enter homes in violation of the Fourth Amendment," he said.

Bodensteiner said the decision doesn't really give police the power to enter anyone's home illegally — it simply states that if they do, the resident must turn to the courts for relief.

"That's why we have a judicial system, is to resolve disputes in a more civilized fashion," Bodensteiner said.

Indianapolis Fraternal Order of Police President Bill Owensby said the furor over the ruling was "much ado about nothing" because police would continue to operate as they had in the past, obtaining warrants and knocking on doors.

"There's an assumption ... that officers are just going to go out there and willy-nilly kick in doors. That isn't the case," he said.

But Young, the state senator, said protection rather than legalities are a resident's primary concern when someone illegally enters their home, police or not.

Associated PressCopyright 2014 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

"When someone enters your home illegally at 3 A.M., your first thought is not what court will have jurisdiction, but, rather, what do I need to do to protect my family," said Young.






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