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It’s Sam Alito’s World…

[ 40 ] May 14, 2011 |

…we just live in it.

Comments (40)

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  1. Davis X. Machina says:

    Shoot. Never mind the Constitution, now Robert Hunter has to go back and re-write the lyrics to “Truckin‘”….

  2. ema says:

    “We believe … a right to resist an unlawful police entry into a home is against public policy ….

    Would that be the “police get to break the law at will and there’s nothing you can do about it” public policy?

  3. rea says:

    I’m not too shocked by a rule that says you have to litigate search and seizure issues in court, rather than fight them out physically with the police (and then litigate who was justified).

    • Flowers says:

      Exactly. One can refuse consent all one wants, but one cannot resist. The former keeps one from going to jail, the latter almost guarantees the opposite result. Nothing new here.

    • Pithlord says:

      Maybe it’s the Canadian coming out, but I gotta agree with this. Physically resisting illegal searches is not an effective way to restrain police abuse.

  4. Norman Thomas says:

    Read the article and I have mixed feelings about it.

    On one hand,it appears that you are correct that the police should not have access without due process and on the other hand I can see special powers as we do with federal marshal law.

    But what’s with the “Alito’s World”?

    I searched the article for ‘alito’ and the only entry is the comment you posted linking to this blog. The author never mentioned Justice Alito.

  5. charles pierce says:

    Deliberately obtuse is no way to go through life, son.
    Anyway, this is one of those cases in which I’m counting on Tony Scalia to bail us all out.

  6. Glenn says:

    Practically speaking, this really doesn’t make much difference. The instances in which any rational, sober person would be so sure that a police entry was unlawful that they would be willing to physically resist the cops must be vanishingly close to zero. I mean, if you’re wrong — not good.

    • Joey Maloney says:

      Even if you’re right, it’ll probably be your heirs making that case in court.

      • Bart says:

        Yes, because at a minimum you’ll be tased, sprayed, and cuffed.

        • Norman Thomas says:

          I learned as a teenager that you don’t fight police in the field, you fight ‘em in court with lawyers.

          • Malaclypse says:

            I learned as a teenager that you don’t fight police in the field, you fight ‘em in court with lawyers.

            Rich parents? Who would have guessed…

            • Fosco says:

              Come now, that’s not fair. A lot of us, from all kinds of backgrounds, learned the rules as teenagers. Particularly the rules you had to know when you started breaking laws regarding underage drinking and illegal drug use/possession. There’s nothing to suggest rich parents there (nor is there anything wrong with that – you can’t help your birth). Chill out.

              • calling all toasters says:

                Reading is fundamental.

              • DrDick says:

                Poor kids got lawyers to fight for them in the courts? I’m moving to your state because it is a whole lot more progressive than anywhere I have ever lived.

              • Fosco says:

                Fair enough. Still, “as a teenager” is when you’re supposed to learn this kind of thing – don’t see the harm in saying it. Also, as a teenager is when I learned that, if you got into this kind of trouble, the ACLU and NORML could help you find a (relatively) cheaper lawyer. There were options. Which I learned about. As a teenager.
                (supposed to be a reply to DrDick – not sure if I worked the comment system right)

  7. LoriK says:

    How are we, the little people, supposed to know when the most important thing in the world is the sacred original intent of the Framers and when the most important thing is being compatible with modern jurisprudence, Fourth Amendment or otherwise?

    I guess I should just trust that the important folks will let us know.

  8. timb says:

    Yeah, I went through and read the decision and the Court (I have to capitalize since it’s my Supreme Court…) rationalized that decision pretty fairy: “if you resist whether you think the cops are wrong or not, then someone is gonna get hurt.” And, there are remedies. Now, typically in Indiana, those remedies exists more for rural white people than it would for blacks or Latinos from Indy or Gary. Still, it was the correct decision in the case they had in front of them.

    Meanwhile, lest we forget, just a few years ago, a drunk guy climbed up balconies to his 3rd floor apartment and someone called the cops. Thinking there was a burglary, the cops busted in. Thinking it was a home invasion, the drunk guy rushed them. They killed him. His estate lost the lawsuit.

    Seems to me there’s a conflict here between a conservative’s values: the belief that cops are wonderful when they mess with others and the belief that one should carry around a gun with him at all time, because who knows when the bad people are gonnna break into the house and take your stuff.

  9. Joe says:

    In Alito’s world, when the homeowners sue afterward to get relief, the police are immune. See, e.g., GEORGIA v. RANDOLPH.

    Volokh Conspiracy discussed the case and in comments Orin Kerr and others noted it has various complications. I don’t agree with the flippant title of this post.

  10. The weird thing about this decision is that it doesn’t really fit the case as I remember about it in the Indianapolis paper. Basically; police got a domestic violence complaint, respond, man’s outside starts screaming at them, wife is throwing his stuff on the lawn, he goes inside, refuses them entry, tries to physically block them, she asks them to come in, they push past him, he assaults one officer, gets tazed.

    At trial for assaulting the cop he wanted to argue the assault was legal because he denied permission for the police to enter and therefore had the right to assault them. The judge refused the allow the defense, in as much as they pretty obviously couldn’t establish that the entry was unlawful, and that’s been the basis of the guy’s appeal. I don’t even know that the state was arguing that there was no right to resist unlawful police entry, frankly.

    The decision, juxtaposed to the case, strikes me as just stupidity, and I have a pretty difficult time seeing anyone but Thomas or Alito voting to uphold it.

    • Scott Lemieux says:

      Right, particularly strange about the authoritarian rhetoric is that it seemed utterly unnecessary to find for the police. There pretty obviously seemed to be exigent circumstances that would make the search lawful.

      • Flowers says:

        Scott, the wife allowed entry. Only one person has to give consent, even if every one else refuses. No exigent circumstances needed. It was clear consent.

      • L2P says:

        Perhaps you’re right and exigent circumstances were “obvious.” But does this relaly seem like something only a ridiculously authoritarian judge would say? That on the facts of that case, the entry was unlawful, but there was no right to resist the unlawful entry of the police?

        Maybe it’s just me, but this doesn’t sound like jack-booted stormtroopers running amok. Isn’t it possible for reasonable people to think the fourth amendment doesn’t allow people to resist the actions of the police in the normal course of their duties?

        • Scott Lemieux says:

          There would be nothing authoritarian about denying a right to resist in this case. I see no defense for making a statement at that level of generality that applied to any kind of unlawful entry.

          • Joe says:

            Not “any kind” but the kind involving police carrying out their duties.

            So, what situation would you make it a “right” to block, including by physical force (?), in the heat of the moment police officers from entering?

            And, why wouldn’t the other methods of relief, including suppression and civil penalties, including damages, be satisfactory?

  11. Joe says:

    The ruling also notes:

    “In response to this criticism, a majority of states have abolished the right via statutes in the 1940s and judicial opinions in the 1960s.”

    And:

    “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.”

    It also cited a narrower ground but if the ruling was “activist,” court opinions are sometimes, when given a chance to state or clarify a rule of law. I think the dissents are correct that a narrow rule was appropriate given the case. But, especially given Alito would oppose the relief the majority left open, the ruling was not “Alito’s World” and had some reason to it as well.

  12. aesquire says:

    What exactly is so outrageous about this opinion? If the police enter a home illegally, i.e., without a warrant supported by probable cause, the evidence gathered will be suppressed. If the police injure persons or property upon entry, the department will be liable for that damage.

    Who could possibly think it’s a good idea to embolden homeowners to physically resist entry by armed, trained police officers?

    • anonymous says:

      The problem is that this kind of ruling becomes a defense against civil remedies and/or suppression. As many commenters have pointed out, is that the opinion was unnecessary. The correct (or maybe more accurately, easy) ruling is that he may have been entitled to the jury instruction, but under the facts, it’s harmless error.

      • Joe says:

        “this kind of ruling becomes a defense against civil remedies and/or suppression”

        How so? The very point of removing this common law rule is that there were civil remedies and/or suppression developed to deal with the problem.

      • Pithlord says:

        That’s wrong. Illegal entry just isn’t a defence to assaulting a police officer. The decision says nothing about constitutional or civil remedies. Whether this guy was entitled to any, he wasn’t entitled to attack a police officer.

        • R. Johnston says:

          This guy, in these circumstances, was clearly not entitled to resist police entry. The written opinion, however, was broad enough deny a right to self defense when the police execute a no knock warrant without identifying themselves in the middle of the night at the wrong address. That’s the problem.

          • Joe says:

            The whole point is that what “clearly” means is often quite unclear. But, the ruling also is about “police” entry and the facts concern police clearly stating their business.

            Your gloss would amount to an inability to resist ANY entry, since who’s to know if the person entering is a police officer. This is an extreme interpretation and assuming it w/o more is problematic.

  13. c u n d gulag says:

    I’m old enough to remember when Consrvatives would have had a shit fit over something like this.

    Well, if Habeus Corpus was expendible, why woudn’t this?

    And, I mean, they came from an ‘International Law” – the Magna Carta, so why pay any attention to them?

  14. charles pierce says:

    Somebody told me today that Indiana has a codified “castle” doctrine in state law, which makes this even weirder.

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