For centuries a person’s home has been considered his castle. This fundamental liberty was recognized in the Magna Carta and later in our own Bill of Rights. After all, our Founding Fathers fought a war for independence from the British for routinely violating these cherished and long-recognized rights.
The Fourth Amendment is not ambiguous in its meaning; clearly stating that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Just last week, however, in a move that would have made King George III proud, the Indiana Supreme Court cavalierly decided that police can enter a person’s home for any reason – or no reason, or an unlawful reason — and the homeowner forced to stand aside and let them do their deeds. This 3 to 2 decision of the Hoosier State’s highest court, essentially reinstates the hated Writs of Assistance utilized by the British Crown in the colonies; according to which colonial citizens were subject to Royal gendarmes entering their homes for whatever reason their colonial masters decreed were necessary to “assist” the King.
Unless overturned by the federal courts or the state legislature, Indiana residents will be deprived of the Fourth Amendment’s protection against “unreasonable searches and seizures” enjoyed to at least some degree by people in other states and under federal law. To these Indiana jurists, the substance of the Fourth Amendment appears merely as a suggestion, not a protected civil liberty.
The specific issue at hand is whether or not you can resist someone – anyone, including a police officer – attempting to illegally enter your home. In this case, Barnes v. Indiana, a couple had been arguing outside their apartment. The police were called to investigate, but were denied entry by Richard Barnes, the husband. Ignoring his wishes the police entered anyway and he attempted to stop them. Barnes was subdued with a taser, and subsequently charged with misdemeanor resisting arrest and battery of a police officer.
At his trial, Barnes sought to have the judge instruct the jury to consider a defense that was permissible to resist unlawful entry into the home. His request was denied by the judge; a ruling eventually upheld by the state Supreme Court.
Writing for the majority of the high court, Justice Steven David stated, “[a] right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence” (emphasis added). He also opined that, “allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”
Rather than simply requiring police to obtain a warrant or possess at least some degree of reasonable cause (which did not exist at the time the police forced their way into the Barnes’ home), the Indiana Supreme Court has granted Indiana law enforcement a green light to enter a home for any reason or no reason whatsoever, and force the occupant to stand meekly aside and do nothing.
Unfortunate and troubling as this opinion is, it is of course not the only instance of how the Fourth Amendment’s protections against unreasonable searches and seizures have been eroded in recent years. Just last week, for example, the U.S. House of Representatives Judiciary Committee voted to extend the power of the federal government under the USA PATRIOT Act, to gain access to a person’s private records in the hands of a third person (such as a doctor) as part of some undisclosed “foreign intelligence” investigation, without any suspicion that the person has engaged in any unlawful activity whatsoever.
Clearly, the Fourth Amendment is under assault at all levels of government. Unless the American citizenry awakens to this danger and begins demanding the rights the Amendment protects be restored, one of the fundamental underpinnings of our very Liberty will vanish, perhaps permanently.
By Bob Barr – The Barr Code