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A Castle too Far

A Castle too Far

Over the last past twenty years or so, states have been strengthening the “Castle Doctrine” affording homeowners’ greater protection when they use deadly force against invaders.

It is common sense that when one is in one’s home and an intruder appears one can resort to deadly force to protect oneself without fear of legal repercussions. However, even this common sense approach can go a bit too far; and that is what is occurring in the state of Indiana right now.

In response to the Indiana State Supreme Court’s decision of Richard L. Barnes v. State, in which the Court disallowed a castle doctrine defense for a homeowner who forcibly attempted to bar police entry into his home, the state legislature has passed a statute that would overturn this decision (Homeowner Protection bill).

Barnes involved the police responding to a domestic dispute between a husband & wife. When the police arrived, both parties were observed outside of the residence, apparently unharmed. When the couple entered their home, the police attempted to follow them in. The husband, Richard Barnes, refused the police entry. The situation escalated and became physical. Mr. Barnes was ultimately arrested for battery of a police officer and he was convicted of this charge in a court of law.

His argument upon appeal was that the police entry into his home was unlawful and that the jury should have been allowed to consider a castle doctrine defense as to the unlawfulness of the police conduct. The Indiana Supreme Court disagreed with Mr. Barnes’ contention and affirmed his conviction. With this bill pending before the Governor, he needs to veto it.

Although not as old as the “Castle Doctrine”, there is general principle of law that one may not resist a police officer. Any issues surrounding the appropriateness of the officer’s conduct can be reviewed later. There is a general consensus that to allow otherwise would breed contempt for the rule of law and lead to unnecessary violence.

There is also a practical consideration in not allowing a castle doctrine defense in police-homeowner confrontations. The law as to when the police may enter a home (either with or without a warrant) is very complex. For an ordinary person to understand what police conduct is lawful and what is not is mostly beyond their knowledge. There are nuances to the law. A person may believe that the officer’s conduct is unlawful, when in fact it is perfectly acceptable. I did twenty years in the NYPD, the public perception of police work is woefully misguided, too much education by television. And these perceptions will carry over into real life, with real consequences.

In wading into this controversy, the Indiana state legislature is treading on dangerous ground. At first blush it seems to afford homeowners more protection, but in reality it does not as assumptions of what is lawful or not will lead to confrontations. At a minimum, these confrontations will lead to more homeowners being arrested and with confrontations always comes the risk of injury or worse.

Far from helping, the Indiana legislative bill muddies the waters and without a clear picture, lives will invariably be damaged. It is best to leave these situations to the courts to handle after the fact – when emotions have cooled.

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Comments

Although not as old as the “Castle Doctrine”, there is general principle of law that one may not resist a police officer.

Roger that, Mr. Lombardi … but one has to be circumspect not to be cooperative to the point of self-incrimination, either.

http://tinyurl.com/yfkstwv

There is a general principle that one may not resist a lawful police officer acting within the course of his proper duties.

When the officer’s actions cease to be lawful it is entirely right and just that they be opposed. Should such unlawfulness rise to the level of armed trespass then the Castle doctrine would seem applicable.

    Neo in reply to ThomasD. | March 11, 2012 at 9:25 am

    There was a story out of CA (?) recently of a military vet who’s home was invaded by a drug enforcement special weapons team.
    The man was awoken by the sound of a chainsaw coming through his front door. He yelled through the door asking why. Getting no response, he tried to confront them. He died of at least 6 gunshots.
    The police were at the wrong address.

      iconotastic in reply to Neo. | March 11, 2012 at 12:05 pm

      That was Arizona and the former Marine was Jose Guerra. He was killed by a bunch of stormtrooper yahoos masquerading as a SWAT squad. The yahoos fired nearly randomly into the hallway after breaking into Jose’s house. They did manage to not kill his wife and child. I don’t believe any of the killers faced any sanctions at all.

      Jose, btw, did not fire. At least he maintained good fire control. But he was a Marine, not a overgrown kid playing Army.

As to what the new legislation says, not having read it I cannot be certain.

Hopefully it reminds police to tread lightly, particularly when entering a private residence without warrant.

    Good luck with that “hope”.

      ThomasD in reply to 49erDweet. | March 10, 2012 at 6:50 pm

      The “hope” stems from the possibility that law enforcement may read between the lines of the statute and recognize a warning that failure to heed the rights of the citizen just might get you (lawfully) shot in the face.

      Badges being rather ineffective against bullets and respect being a two way street.

“The law as to when the police may enter a home (either with or without a warrant) is very complex.”

Why?

    Due to the ABA’s maximum employment policy program, of course.

    JayDick in reply to davod. | March 10, 2012 at 4:46 pm

    Bingo. That could be the root of the problem. No warrant, no entry unless someone is obviously in danger. That doesn’t seem too complicated, now does it?

      Awing1 in reply to JayDick. | March 10, 2012 at 6:13 pm

      What about when it’s not “obvious” that someone’s in danger, but it’s possible, such as when there’s a silent 911 call? Or a domestic disturbance call and when the police get there and knock on the door, one person answers (or even both, with one under unseen duress) and tells them there’s no problem?

        ThomasD in reply to Awing1. | March 10, 2012 at 7:16 pm

        That’s why it often sucks to be a cop – nobody said it was easy.

        But stomping all over the rights of the citizen because there is the possibility that someone is in danger (among myriad other possibilities) just wont fly without something more substantial to go on.

        Making law enforcement more cognizant of this imperative, and the associated risks of being in the wrong is long overdue.

        Awing1 in reply to Awing1. | March 10, 2012 at 10:53 pm

        They certainly do have to have something cognizable, but more than what’s required now? I’m not so sure. The Constitution requires reasonable suspicion. I don’t know what everyone else here is using as their metric, but I’m a fan of what the Constitution says.

          Milhouse in reply to Awing1. | March 11, 2012 at 12:40 am

          The constitution says no such thing. You will search it in vain for any reference to “reasonable suspicion”.

          Awing1 in reply to Awing1. | March 11, 2012 at 1:44 am

          “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

          That’s the prohibition the police are under. Their searches cannot be unreasonable.

          Milhouse in reply to Awing1. | March 12, 2012 at 8:53 pm

          And what the $#%^% has that got to do with reasonable suspicion? You know damn well that the answer is “nothing at all”. You’re just raising a red herring.

Family of Marine Gunned Down by SWAT Team Still Searches for Answers and Justice

http://www.theblaze.com/stories/family-of-former-marine-gunned-down-by-swat-team-still-searches-for-answers-and-justice/

For an ordinary person to understand what police conduct is lawful and what is not is mostly beyond their knowledge. There are nuances to the law.

Just sayin’…

SmokeVanThorn | March 10, 2012 at 4:17 pm

You know what would really cut down on confrontations and injuries? A population that thinks it has no rights and submits unquestioningly to law enforcement.

“Although not as old as the “Castle Doctrine”, there is general principle of law that one may not resist a police officer. Any issues surrounding the appropriateness of the officer’s conduct can be reviewed later. There is a general consensus that to allow otherwise would breed contempt for the rule of law and lead to unnecessary violence.”

Ummmmm, stop right there. In the first place, take your “general consensus” and shove it. There’s a general consensus that global warming is going to destroy the planet, and hopefully most of us know by now that the consensus on that one is pure BS.

More importantly, it is incredibly important in a free society that the police not have license to do whatever they please. That business about reviewing conduct later is just not good enough.

Look, I tend to side with the police in most instances, but that doesn’t make them angels. There have to be limits and making them follow the constitution and get a warrant (except – usually – in cases of “hot pursuit”) really isn’t going too far.

That bit about avoiding “contempt for law” is at best a two-edged sword. Everyone respects the jackboots, even when they’re kicking down the door. That does not, in fact, have anything to do with the rule of law. It has more to do with terror and the rule of terror has no place in the U.S.

The example you cited sounds exactly like a case where the police deserved to be opposed. Maybe there’s a specific law that caused them to try to force their way in, in which case they should be just as angry as that homeowner over the horrible law that attempted to destroy his rights. As Americans they had a duty to resist that unconstitutional law (if one such exists and they didn’t simply take it on themselves to attack a man in his home).

Far from helping, the Indiana legislative bill muddies the waters and without a clear picture, lives will invariably be damaged.

Where’s the link to the bill?

1. Contrary to the fear-mongering practiced by nasty expletive politicians outdoing each other to “give law enforcement whatever it wants the tools it needs”, the law should not exist for the benefit of the police.

If some officers are endangered by working conditions that give the benefit of the doubt to citizens’ liberty, by all means compensate them fairly for the danger; do not stint.

But the law should not be tailored for the convenience of the police.

2. Remember folks, if the cops misbehave, a judge is only months away—if you can afford a lawyer.

    gs in reply to gs. | March 10, 2012 at 5:11 pm

    1. Having climbed back down through the hole in my roof I made upon reading this post, I thank Captain (Ret.) Lombardi for stating his views in a public forum. Although I completely disagree with Louis’s opinion, I do not doubt his integrity and good intentions.

    2. I agree with the commenter who wrote that a State employee who is in my home illegally has, or should have, the same rights any other comparable illegal entrant.

    3. Iirc an Indiana county sheriff reacted to the Barnes ruling by saying, in effect, Yee haa! Now we can do a lot more searches! I’ll post a link if I can find one.

    4. I certainly don’t expect officers to patrol high-crime areas clad in lounge wear. However, as far as overall law enforcement is concerned, I am worried about the growing authoritarianism of the State and the growing militarization of the police.

    (OT: And by the growing willingness in parts of the political spectrum to use institutional force, especially that of the State, to impose their views.)

      gs in reply to gs. | March 10, 2012 at 7:06 pm

      1. 2. I agree with the commenter who wrote that a State employee who is in my home illegally has, or should have, the same rights as any other comparable illegal entrant.

      I mean, of course, that the State employee should have no more rights than any other comparable illegal entrant.

      2. The Indiana county sheriff I mentioned seems more egregious than I remembered: apparently he considers himself empowered to do warrantless house to house searches.

      3. Mitch Daniels appointed the Chief Justice who went out of his way to write an unnecessarily expansive opinion in the Barnes case. By having his office cite separation of powers as the reason he stayed out of the resulting controversy, Daniels does not show to advantage. I can think of much less civil, and possibly more accurate, ways to rephrase the previous sentence.

    gs in reply to gs. | March 10, 2012 at 5:35 pm

    William Pitt the Elder on the Castle Doctrine:

    The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!

    Lacks nuance, but I like it.

    sammy small in reply to gs. | March 11, 2012 at 2:16 pm

    “Remember folks, if the cops misbehave, a judge is only months away—if you can afford a lawyer.”
    Try YEARS away… I am following just this type of incident with a buddy using the absolute best lawyer around, and it has been 3 years and the case is still not yet at the trial stage.

Nonsense. It is absolutely within my rights to “resist” the police if deemed necessary. The police, on the other hand, cannot enter one’s home without at least probably cause, and it seems in this case with no problem evident, they had none.

    JayDick in reply to deadrody. | March 10, 2012 at 4:50 pm

    Probable cause may justify a warrant, but it does not justify forced entry.

      ohiochili in reply to JayDick. | March 10, 2012 at 6:00 pm

      Two cops are dispatched on a domestic disturbance call. They don’t hear anything as they approach, and knock on the door. A man answers the door, and the cops are able to see a woman lying on the floor in the entryway leading into the kitchen. She has blood on her face. The man slams the door shut. Shall they wait for a warrant, or does the man get a free pass if law enforcement forces their way in and he blows them away?

        Of course they can go in, in that case, just as they can arrest someone if they can see, from the door, that pot is growing in the living room (The case has come up).

        When you can see a crime, you must do something about it, police or civilian.

        That has absolutely nothing to do with the case currently under discussion.

        jdkchem in reply to ohiochili. | March 10, 2012 at 6:46 pm

        In your example yes.

        Steve in reply to ohiochili. | March 10, 2012 at 10:27 pm

        If the police have been called to a site of a dispute and they :

        “see a woman lying on the floor in the entryway leading into the kitchen. She has blood on her face. ”

        Then they have probable cause that a crime has been/is being committed and castle doctrine doesn’t apply. Castle Doctrine would only apply to the situation where they do not have probable cause or warrant.

          Awing1 in reply to Steve. | March 10, 2012 at 11:21 pm

          The comment you replied to wasn’t replying to the article in general, but to another comment that explicitly said “Probable cause … does not justify forced entry”. Castle doctrine had already been thrown out the window.

In Texas this would have been reasonable. The cops would have had to get a warrant to enter the home absent screams for help or other probable cause that a crime had been committed.

Excerpt from ( Penal code 9.31 🙂

(c) The use of force to resist an arrest or search is justified:

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

    retire05 in reply to Steve. | March 10, 2012 at 8:20 pm

    The “Castle” doctrine in Texas expands beyond ones home; it also includes ones vehicle and place of business. I think this is due to a series of rapes that occured in Houston on a major freeway.

    A car, fitted out much like a unmarked police car of 30 years ago, was crusing the Houston freeways at night. Women who were kidnapped, and later raped, reported that they would see flashing lights and even a hear a police type siren indicating for them to pull over. When they did, a man dressed in a HPD uniform would exit his car, approach the woman and tell her to get in his “police” vehicle. At that time, police uniforms were sold to almost anyone, but that has changed.

    HPD ran ads everywhere at the time advising women, in the event they were pulled over, not to exit their vehicles and to simple lower the window enough to pass their driver’s license through it, while leaving their engines running.

    IMHO, the Indiana court was erroneous in its ruling. It based its ruling on the assumption “that Indiana no longer recognizes a common law right to resist” even though there is no assumption of a crime having been committed or being in the process of being committed. This ruling would leave the door open for police to be able to search your home even without probable cause or a warrant. It gave the police the right to excessive use of force if you refused them admission without the proper warrants.

    Fortunately, most LEOs are honest hard working public servants. But in all fields, there are those who are not loyal to their oaths. Private citizens have a right to secure themselves against those in that thin blue line who make a mockery of their oaths to serve and protect.

      Awing1 in reply to retire05. | March 11, 2012 at 12:01 am

      I can see how not applying self defense or the castle doctrine could create some problems in that police could instigate the conditions for an arrest, but it hardly gives them any special “rights”. They may still be held personally liable under 42 USC 1983, even if you can be arrested for assaulting them to prevent them from unlawfully entering your property. And to gain the protection of the “assault on a police officer” statute, the officer still must be engaged in official duties.

      If you read the opinion, it actually appears the court is just trying to not play legislature by creating a defense to a crime that the state legislature didn’t put in the statute. They were also probably swayed by the fact that no one really believed the officer actually entered unlawfully.

Heres another reason: There have been smash and grab robberies where ‘Police! Police!’ were yelled by the bad guys who were wearing police vests/uniforms.

The nonsense about no-knock entry and police absolute authority should be thrown away. If there is no evidence of a crime ( not talking to a LEO is not a crime ) visible from the walk and entry is refused by owner Police have NO RIGHT of entry without a warrant. Its pretty simple law , not complicated at all here in Texas.

    Thank God for Texas!

    That said, the original justification for a no-knock warrant was valid. You get the no-knock if you have good reason to believe that when the bad guy hears the knock, he’s going to kill someone – including the police doing the knocking.

    BUT, once no-knock warrants exist, the authority becomes easy to abuse. There should be a very very high bar on issuing these warrants (though considering how bad some judges are at applying the law, even that is not an absolute protection).

    MaggotAtBroadAndWall in reply to Steve. | March 10, 2012 at 7:23 pm

    I thought I was going to be one of those victims when I lived in NYC.

    I had just moved to NYC to attend grad school at NYU. I just left my apartment and was walking alone down the street early on a Saturday morning on my way to get a cup of coffee. I had not spoken to a soul and was completely minding my own business. Then I hear people running toward me from behind and a voice shouts, “NYPD. Get your hands on the wall!!!”. There was nobody near me in front, and since I knew they couldn’t possibly be talking to me, there had to be someone behind me they were pursuing. As I turned around and looked, I see three guys running at me wearing civilian clothes. One guy with long hair was flashing a badge and he screamed, “Can’t you hear? I said get your hands against the wall!!”. Now for a split second my instinct was to run because I had done absolutely nothing wrong. I was sure the badge was a phony, the guys were not cops and I was about to be robbed, beat up, or whatever.

    But I froze instead. The guy with the badge shoved me toward the wall and said, “I’m not telling you again, put your hands against the wall”. As I did so, he says, “we saw you sell drugs to that black guy back there. Now open your backpack up”. Before I did so, I pleade with the officers there must be some terrible mistake. I said I don’t do drugs, I don’t sell drugs, and they’ve got the wrong guy. I’m sure they’ve heard that a gazillion times. But it was true. At that point he used his radio to talk to someone who apparently was hiding nearby who had presumably witnessed the alleged drug sale. That person confirmed they were about to arrest the wrong man. Even so, he said, “so we’re not going to find drugs in your backpack”? I said, “No sir”. Then he just said ok and they turned around and left. No apologizing. Just acted like nothing had happened.

    As I kept playing the event over and over in my mind that day I remember thinking that if there had been nobody on the other end of the radio, they would have wrongly arrested me and it would have been my word against the word of three police officers who would have testified they had witnessed me sell drugs. The probability I would have been convicted had to be close to 100%. It would have ruined my life. It really freaked me out. I seriously considered dropping out of school and moving away, but I was broke and really had no where else to go. So I stayed.

    And I continued to live in NYC for about 16 years. Ironically, the only time during those 16 years that my liberty was ever violated was that one time. By the NYPD – the people who are charged with protecting our liberty.

      Juba Doobai! in reply to MaggotAtBroadAndWall. | March 10, 2012 at 9:21 pm

      51 bullets. Something shiny in your hand. Matching description. The law allows a lot of abuse. It doesn’t much allow us to defend ourselves against cops, and the blue wall of silence ensures we can’t. Cameras, vids can break the blue wall.

For an ordinary person to understand what police conduct is lawful and what is not is mostly beyond their knowledge.

Perhaps it should be taught in the schools instead of sex ed.

(I doubt that the subject matter is that difficult, given that your ordinary cop is no law professor.)

    turfmann in reply to janitor. | March 10, 2012 at 7:25 pm

    What is taught in schools, after instruction in the proper application of a condom on a banana, is the notion that bullying is wrong.

    While on its face this is correct, the upshot is that when a child is confronted by a person who uses the intimidation of physical violence, the child is to subjugate their self-defense to the power of the state, in the person of the school administration.

    Of course, there is no bully in the school that can hold a candle to the power exerted by the teacher or the principal – the biggest bullies of them all.

    Their lesson is that resisting a bully is wrong.

    And that is a lesson that they take with them long after they leave the schoolyard.

    When the criminal comes lurking, call the police. Only they have the power to stop someone from infringing on your rights – not you yourself. The concept of the Second Amendment is anathema to those who covet the power to bully the proles.

    Castle doctrine be damned is what the state is saying. Our power is omnipotent, William Penn the Elder to the contrary.

“Any issues surrounding the appropriateness of the officer’s conduct can be reviewed later.”

I like the sound of that. Can’t recall this being applied very often in real life though. Cops lie to protect other cops.

    Steve in reply to Same Same. | March 10, 2012 at 10:02 pm

    Later is too late for the fellow shot in a mis-identification incident; or the fellow unfortunate enough to have a cellphone in his hand at the wrong moment.

    Cops need to be MORE accountable not less.

proof that the words to protect and serve should be removed from all uniforms/mottos, etc. also thinking like the authors is why I got out of LE. we called it the John Wayne attitude, or the King of all I see attitude.
its the attitude that has led to the general disrespect the author complains about. ain’t karma a bitch?

Juba Doobai! | March 10, 2012 at 9:10 pm

I taught the males in my family that when it comes to police action, before you get outraged, you must first ask “what does the law allow?” While we may be outraged at some police action, say 51 bullets, the law is unemotional and considers other factors.

These people are making a gross mistake. The first time a woman is murdered in a domestic dispute while the cops are outside the door and unable to enter because of the castle law, the over zealous will demand a return to the status quo.

    So in your world the cops could justifiably conduct House to house sweeps just in case someone was being held against their will, assaulted, raped, or maybe drugs or stolen property etc with no corroborating evidence before entry.

    Why stop there why not search anyone anywhere? Your interpretation renders 4th, 5th amendment protection worthless.

    That’s BS. The whole issue at hand here is they did not have probable cause, the woman was not visibly harmed, went voluntarily in the home and no evidence of having been harmed. The Police should have called dispatch to patch to the phone if they were really worried or otherwise asked the woman to come outside to talk with them. There was no cause from the info in the article that they needed to enter.

    A loud argument accompanied by sounds of conflict(breaking glass furniture being hurled etc, screaming for help or visible wounds would have provided probable cause and negates your emotional appeal to allow Police to enter any domicile at any time for any alleged reason.

Maybe this is why I never practiced criminal law, but I thought a known unlawful arrest could be resisted. As could a known unlawful search.

I guess I’d fail criminal procedure these days, cause I’d have pulled a gun.

scottinwisconsin | March 10, 2012 at 11:58 pm

Your analysis depends upon the quaint notion that the police are usually good and usually right. Neither of those notions is true.

Now, more often then not, they are bullies, thugs, criminals and murderers.

http://www.injusticeeverywhere.com/

A jury should be instructed that if they believe the police were in the wrong, and the homeowner in the right, resisting the police was justified. The law should reflect that.

It’s time to realize they don’t work for us any longer, if they ever did. Resistance is going to be required. Wake up. It’s late.

Molon Labe.

“Although not as old as the “Castle Doctrine”, there is general principle of law that one may not resist a police officer. ”

Nonsense. There is no such principle of law; that is a principle of anti-law, of tyranny. It is an evil doctrine, which the USA’s founders gave their lives to resist, and which we have the duty to resist by all means necessary, including killing those who would forcibly impose it on us. Congratulations to the IN legislature for striking a blow against it, and shame on Mr Lombardi for his support of it.

Remember that the Castle doctrine is precisely about ones right to keep the King’s men out, not burglars! Lombardi’s position is exactly the same as one who would claim that the second amendment is all very well when it comes to arming oneself against burglars, but nobody should be allowed to arm himself against his government! Excuse me? What the @#$% do you think the amendment is about? The exact same thing applies to the Castle doctrine. If an Englishman’s home is not his castle against the police then it’s not his castle against anyone else either.

    OcTEApi in reply to Milhouse. | March 11, 2012 at 9:19 am

    Well said.

    in addendum
    “Any issues surrounding the appropriateness of the officer’s conduct can be reviewed later. There is a general consensus that to allow otherwise would breed contempt for the rule of law and lead to unnecessary violence.”

    He’s operating under a couple fallacious arguments here, an appeal to authority and we have to do something.

    The only reason there’s ambiguity here to the “rule of law” and the officers conduct to “be reviewed later” is because lawyers inject themselves to make it more complex, while the intent is to condense and make more clear legal issues down to narrow facts, the appeal to authority to inject their own legal jargon and legalese that without would put themselves out of work.
    We have to do something or we risk the slippery slope that would “otherwise” breed contempt for the rule of law and lead to unnecessary violence.

    They are operating under the assumption that some act that was deemed specifically prohibited by law “a domestic act of violence.” While cursory and empirical evidence did not support the notion at the time said alleged act was committed.
    While in truth the governments primary duty above all is to protect private property rights, the mere fact that police were called and their duty to investigate therefore made his private property rights nullified because “an alleged act” transcends into the public realm.
    FAIL

I’m glad I live in Colorado. They call the castle law the “Make My Day” law. It’s not as broad as Texas’ castle law, but it’s a helluva lot better than the so-called “self-defense” laws in NY. Apparently if you own a gun in NY, you can justifiably use it to stop an intruder–but ONLY if you first determine the intruder has a non-gun weapon AND has intent to harm you. WTF? Sounds like you have to make the intruder give a deposition before you fire! ARGH!

    Yes. I live in New York where the law creates a duty to retreat. That is, if someone breaks into my house, I should just go out the back door and let them have the place. In practice, once I’m out the back door my wife can shoot him and get away with it (if he’s not a cop). If I shoot him, it could get really ugly, depending largely on the whims of police and prosecutors. If they don’t like my looks, or it’s an election year, my chances might not be very good.

    That’s what passes for law and order in New York.

      Awing1 in reply to irv. | March 11, 2012 at 1:41 pm

      You’re flat wrong, this is NYS castle doctrine, codified in NY PEN 35.20(3):
      A person in possession or control of, or licensed or privileged to
      be in, a dwelling or an occupied building, who reasonably believes that
      another person is committing or attempting to commit a burglary of such
      dwelling or building, may use deadly physical force upon such other
      person when he or she reasonably believes such to be necessary to
      prevent or terminate the commission or attempted commission of such
      burglary.

Where are the exigent circumstances? I don’t see any, so why is it so hard to sit on the house and get a warrant? Maybe because a judge would never sign one with those set of facts!
I’m all for law and order and have been a prosecutor for over 20 years, but this case from Indiana stinks.
The Governor should sign the bill.

    Awing1 in reply to govlawyer. | March 11, 2012 at 11:08 am

    Actually, the judge in the case said “Neither the trial court, nor the Court of Appeals, nor this Court have agreed with Barnes that the officers violated any statute or any provision of the state or federal constitutions when they sought entry, at the wife’s request, to investigate and ensure the wife’s safety.”

      Just so I’m clear, did the wife actually allow entry or not?

      The version I have heard of this is that the Wife DENIED the police entry into the home, and they entered ANYWAY over the Husbands vociferous objections..

      That would be a crux matter. Any resident with what I’ll call “cohabitation authority” can grant the police access to the home as an equal partner. Actually, any person whom the police even reasonably BELIEVES cohabitates there can grant access.

      But if ALL parties DENY the police access, then their hands are tied unless the police can either SEE OR HEAR a crime in progress. If denied, they MUST wait for a warrant (It’s a 4th Amendment violation for them to cross the threshold, a holding in MULTIPLE SCOTUS cases).

        It was never a question the jury to decided, because they weren’t given the instruction that the castle doctrine could be used to mitigate liability. Ultimately, the jury wouldn’t decide it anyway, because the castle doctrine generally deals with reasonable belief about the lawfulness of the entry, it’s ultimately irrelevant (except in determining the reasonableness of the belief) whether the individual injured or killed was actually there lawfully.

Scary. I think the govs should sign the bill!

“Although not as old as the “Castle Doctrine”, there is general principle of law that one may not resist a police officer. Any issues surrounding the appropriateness of the officer’s conduct can be reviewed later.”

I wonder how this statement applies to the many citizens shot to death each year by police officers breaking down doors on “no-knock” search warrants that are seen with guns, clubs or other things construed as weapons in hand such as Todd Blair: http://www.thedailychronic.net/2012/7958/video-same-ogden-ut-police-force-killed-man-armed-only-with-golf-club-in-2010-raid/. You like how Todd was shot down like a dog for holding a club in his hand? I have seen many such videos and none of the police are ever charged or disciplined for the murders. This legislation is a pushback to the many innocent people killed by police invading homes.

[…] Apologia for the Burgeoning Police State Posted on March 11, 2012 9:30 am by Bill Quick » A Castle too Far – Le·gal In·sur·rec·tion Although not as old as the “Castle Doctrine”, there is general principle of law that […]

There’s actually a larger case point to this, and that is the language in the decision that says:

“[W]e hold that the Castle Doctrine is not a defense to the crime of battery or other violent acts on a police officer.”

What the Indiana Supreme Court has now said is that an ENTIRE CLASS of individuals are EXCLUDED from the Indiana Castle Doctrine REGARDLESS of if they are acting lawfully or not.

The Castle Doctrine is an AFFIRMATIVE DEFENSE. It admits that you did what you said you did, but were justified in doing so. That is the right of ALL citizens to be able to plead it, and the Indiana State Legislature is doing the CORRECT thing in restating that the Castle Doctrine of Indiana applies to ALL citizens.

    That’s an angle I hadn’t thought of. Your summary seems like this could be appealed to the Feds as a violation of 14th(? Amendment) Equal protection. So Arguably its also unconstitutional as well as poor policy.

SmokeVanThorn | March 12, 2012 at 12:42 am

Story from Florida regarding arrest of citizen who took video of arrest: Florihttp://www.heraldtribune.com/article/20120310/ARTICLE/120319941/2055/NEWS?p=1&tc=

Note the comment by the former cop describing the cops’ practice of arresting people even when they know the charge isn’t justified, summed up in the statement, “You can beat the rap, but you can’t beat the ride.”

Pardon me if I don’t share Mr. Lombardi’s rosy view of law enforcement.

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