Court Says No Right to Resist Cop’s Unlawful Home Entry

Not in Indiana.

It’s generally accepted in the United States that a person has a right to physically resist unlawful entry into their home by someone else. This sometimes includes the use of lethal force, in cases where the lives or safety of the occupants.

However, what happens when a police officer mistakenly, but unlawfully, enters a home? Do the occupants have a right to resist in those cases? This is especially relevant when police have “no-knock” warrants, which allow them to enter without first announcing themselves. If they go to the wrong address, the occupant may well believe that he is the victim of a home invasion, and respond accordingly. This sometimes leads to tragic cases we occasionally hear reported in news, where a law-abiding homeowner is gunned down by police after they mistakenly serve a no-knock warrant at the wrong address, and the homeowner shoots at the police, thinking they’re common criminals.

For years, there has been an intense debate over what right a person has to physically resist unlawful actions by law enforcement officers acting in their official capacity. The arguments on both sides are pretty straightforward. Proponents of the right argue that this country was founded on, among other things, the right to be secure in one’s home against everyone, including the government, and that the burden should be on police officers to ensure that they are at the right address before entering a home, and should announce their presence. They assert that a homeowner can’t be expected to determine, in a second or two, that the people bursting into his or her home are police officers, and he or she should be able to exercise his right to self-defense, which would clearly apply in a home invasion by anyone else.

On the other hand, opponents argue that such a right would simply encourage violent confrontations between citizens and police, and a police officer acting in the good faith, but mistaken, belief that he is being fired upon by a criminal has a right to defend himself, as well. Furthermore, they argue that the average person is in no position to determine whether the conduct of a police officer is legal, in most situations, and that cases of citizens acting in self-defense against unlawful police action should be judged after the fact, on a case-by-case basis.

Recently, the Indiana Supreme Court weighed in (PDF) on the issue. The case involved police officers responding to a domestic disturbance. When they arrived at the home in question, one of the residents told them not to come in, and began yelling at them. He then shoved one of the officers against a wall, and was subdued with a stun gun. He was tried and convicted of disorderly conduct, and battery on a police officer.

His attorney submitted jury instructions to the judge that mentioned a right to resist an unlawful entry or arrest by police officers. The judge refused to use these instructions, and made no mention of such a right when instructing the jury.

He appealed his conviction based on that jury instruction, and it went to the Indiana Supreme Court. The Court ruled that allowing a blanket right to physically resist unlawful police action would simply increase the risk of violent confrontations, the risk of injury to both the arrestee, and the arresting officer, and would be highly unlikely to actually prevent an unlawful arrest.

Honestly, I’m conflicted about this decision. The right to resist unlawful police conduct has been part of our common-law tradition for hundreds of years, and arguably serves as a very important check against abuses of government power. However, it started hundreds of years ago, long before dedicated, organized police forces were commonplace, and there were no trained, professional law enforcement officers. This means that day-to-day law enforcement activities were usually undertaken by members of the local community, and abuses of power might be more common. Furthermore, firearms were far less common than they are now, so a violent confrontation was far less likely to result in the death of one or both parties.

Also, other remedies, including criminal prosecution of police officers, suppression of unlawfully-obtained evidence, and civil rights lawsuits are now available.

Of course, if a police officer is clearly engaged in unlawful activity, and threatening to hurt or kill a person for no reason, nobody would, or should, blame that person for acting in self-defense, and a court should judge their actions accordingly.

However, whether or not you agree with this decision, one thing is certain: the reaction of some people to it has been unacceptable. In Indiana, some police officers, as well as justices of the State Supreme Court, are receiving death threats in response to this decision. This is never an acceptable response to a decision that you don’t like.

It’s perfectly understandable that this decision is going to create some controversy. Even though times have changed a lot since the old-school common law reigned supreme, it’s still an important part of our legal and cultural tradition. That does not mean, however, that threatening judicial officers who made a decision that you don’t like is the way to go. If anything, it simply gives more ammunition to their decision.