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Barnes v. Indiana and the overreaction to it

Submitted by Simon on Sat, 05/14/2011 - 4:56pm

Every so often, a case unites right and left against the courts. Think of Kelo v. New London, for example. The court's holding that government can use eminent domain to transfer private property to another private entity it judges will use it more productively outraged both conservatives (who like private property) and liberals (who instantly realized that the case opened the door for rich corporations to bribe municipalities to pull land out from under the houses of the poor). But I would not have called Barnes v. Indiana as a case likely to join that pantheon.

Decided earlier this week by the Indiana Supreme Court,* the unremarkable holding of Barnes is that if the police violate your rights by executing an illegal entry into your property, your remedy is at law (presumably suppression under Miranda if the entry leads to a prosecution and a § 1983 suit if not, see, e.g., Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. 2009)) rather than to physically resist the intrusion. In various fora, however, friends, acquaintences, and media outlets on right and left alike are fuming about the decision and saying all manner of nasty things about it—perhaps the very silliest being this article, which implies the decision overrules Magna Carta.

What the critics all seem to miss is that Barnes isn't about rights but remedies. As Justice Rucker's dissent notes (although sharp-eyed readers will note that he quotes Payton v. New York's syllabus—not the case itself, as his citation erroneously claims), the core of the Fourth Amendment is the maxim that a man's home is his castle, inviolable by the police without a warrant. But that's a red herring. The question here isn't whether the entry was illegal, it's what do you do when the police violate your rights?

Justice Rucker and the critics make an enormous, unwarranted, irrational, and frankly dangerous leap: If the Fourth Amendment forbids "all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life," Payton, 445 U.S., at 585 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)), they assume that it must also incorporate the so-called common law "right to resist" (see Bad Elk v. United States, 177 U.S. 529, 534-35 (1900)). We'll return to that point in a moment, but first, let's take a moment to realize just how abberational this claim is. Reasonable minds can—and the justices did—differ over whether suppression is appropriate in cases like Payton, Arizona v. Evans, and Herring v. United States, where police conducted searches that were in fact illegal. But no one thinks that Mssrs. Payton, Evans, and Herring should have physically resisted the officers. Reasonable minds can differ over whether Mr. Lyons should have been able to sue Los Angeles, but no one thinks he would have been justified to start shooting. Reasonable minds can differ over whether the police should be able to enter a house where one physically present resident says they can but another objects (in a horribly mistaken decision, Georgia v. Randolph, the court said no), but no one suggests that Mr. Randolph should have been allowed to take a swing at the cops with the nearest blunt instrument. There is simply no other area of Fourth Amendment law, or any American law at all, where vigilantism is thought the appropriate remedy. Why would this be an exception?

That's what puzzles me about the case's critics. The more reasonable among them (Justice Dickson, for instance) call for a narrower rule, as if the court was swinging a mighty battleaxe with scant concern for innocent bystanders. But it isn't. At risk of repetition—but we have to be clear about this—Barnes holds that your remedy for illegal entry is the same as your remedy for any other illegal search or entry.

As the court observes (in some ways echoing the U.S. Supreme Court's observations in Hudson v. Michigan about improved police professionalism), the reasons for the rule have evaporated with advances in modern police technology:

[A] right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. E.g., Warner, [The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942)] (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist); State v. Hobson, 577 N.W. 2d 825, 835–36 (Wis. 1998) (citing the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies).

No one will deny that a night in the cells is an unpleasent experience, but let's remember what on the other side of the balance: The physical safety of our police officers. As the court notes, "allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest...." That problem becomes particularly acute if we discard a fiction that I indulged above: I've referred several times to "illegal entries" and "illegal searches", but how do we know that a search or entry is illegal? Who gets to decide whether an entry was illegal—and when? Suppose we hold that residents have a right to resist illegal entries; the upshot must be that the resident gets to decide whether the entry is illegal, and will do so in the heat of the moment, because how else could he decide whether to resist? And what the critics fail to realize is that every motion to suppress on Fourth Amendment grounds is a claim that the search or entry was illegal, which means that almost every defendant in those cases could notionally have returned fire under the critics' proposed rule. Proponents of such a rule are going to tell us that Barnes is insane?

Take the Hudson case just mentioned, for example. The state would ultimately concede that Hudson's rights were violated, but the knock-and-announce rule is incredibly subtle, riddled with situation-specific trapdoors and ambiguity—"How many seconds’ wait are too few?" Three to five seconds is too little, as Michigan conceded, and fifteen to twenty is sufficient, see United States v. Banks, 540 U.S. 31 (2003), so, how about ten, cf. United States v. Southerland, 466 F.3d 1083 (D.C. Cir. 2006)? After the dust settled and all the facts could be reviewed, it was decided that Hudson's rights had been violated. In the heat of the moment, however, the police made a snap judgment that the entry was legal; could Hudson—well-versed as I'm sure he was in the common law and fully familiar with Banks—have made a snap judgment that the entry was illegal? And if so, did Hudson have a right to resist that entry? (He certainly had the means: "A loaded gun was lodged between the cushion and armrest of the chair in which he was sitting." How about the defendant in Kentucky v. King; was that entry legal? Did he have a right to resist? The mere fact that the Supreme Court of the United States has to decide whether such searches and entries are legal strongly argues (as Barnes puts it) that it's "unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment."

Lastly, I reserved a point earlier that we must come back to, if briefly. No one disputes that there was a shallow-rooted common law right to resist, and American courts up to and including the U.S. Supreme Court have said so, at least as recently as a century ago. (It is questionable, however, whether that right, properly-understood, is applicable in cases like this; cf. Bad Elk, supra, 177 U.S. at 535; Matthew Lippman, Contemporary Criminal Law 252 et seq. (2d ed. 2010).) But the common law develops, and the Supreme Court of Indiana assuredly has the authority to modify the common law of Indiana. Indeed, the development isn't even novel, see John Ferdico et al, Criminal Procedure 336 (10th ed. 2009) ("While some states continue to use the common law rule allowing resistance to an illegal arrest, an increasing number of states have … reject[ed] the … rule (emphasis added)). Thus, the dissenters need something else: They must contend that the common law right is incorporated into the Fourth Amendment, placing it (theoretically—we opened with Kelo) beyond the reach of the courts to change. That's sound as a general proposition; cf. Wilkinson v. Arkansas, holding that the Fourth Amendment incorporates the common law knock-and-announce rule. But is the right to resist so incorporated? Who says? The dissent simply asserts it, with neither citation nor argument. Surely more probing analysis—indeed, any analysis—is required.

The hostile reaction of ACLU types to Barnes is par for the course; it's a Fourth Amendment decision that isn't explicitly pro-defendant. In days gone by, however, conservatives were law and order types who bemoaned the Warren Court's revolution in criminal process and supported robust police authority to tackle crime. We weren't sissies about the exclusionary rule; we recognized that the Fourth Amendment's ambition of protecting the innocent from overrreaching government can't be accomplished without incidentally protecting the guilty from criminal law, but hoped to limit the overspill. What has happened? Why are some conservatives alarmed by this case?

I'll admit that I think the explanation is simple. Could it be no more than the tenor of the times, so ready to perveive lurking tyranny in every shadow? I posted this week about S.697, in part because I was so astonished to see the almost hysterical overreaction to it in some quarters: "Unconstitutional!" "Tyrannical!" "Obama Ceasar!" Are we now so paranoid about the Obama administration—granted, that most aspirational of Presidents—that some folks don't see this as a case about drug dealers, abusers, and drunken idiots opening fire on the police, but themselves, heroically resisting marauding federal Sardaukar invading our homes? That seems uncharitable, but I can't imagine anything else that would justify Barnes' critics advocating, in effect, a wild west "shoot first" rule. We shouldn't put our police in greater danger every day simply because some folks fantasize that any day now, the day black helicopters will descend to take our guns and impose tyranny.

Post facto:
The novelty factor in Barnes
Barnes v. Indiana

*As will become apparent, my analysis is not limited to the facts of Barnes, but I should recite them anyway. Our two descriptions of the facts come from the Supreme Court's opinion (linked above) and that of the Court of Appeals (available here); I shall attempt to synthesize.
On November 18, 2007, the 9/11 dispatcher received a 9/11 call. A woman explained that her husband was throwing things around the apartment but that he had not struck her. A dispatch went out as domestic violence in progress. Officer Reed was the first to respond to the dispatch and to arrive on the scene, where he found Barnes leaving the apartment carrying a duffel bag. Reed explained that he was responding to a 9/11 call; Barnes, agitated and yelling, told Reed that his services wouldn't be needed. When Barnes continued to harrang Reed, the latter warned that an arrest for disorderly conduct was in the offing, prompting Barnes to threaten a fight.
At this point, the wife, Mary, walked out of the apartment. (Remember, the cops are responding to a domestic abuse in progress dispatch; this is their first time seeing her. For all they knew, she was dead inside.) Your imagination will fill in doubtless colorful dialogue for what the court blandly describes as follows: "Mary walked out of the apartment carrying another duffel bag. She threw the bag down on the ground, telling Barnes to take the rest of his things." She stalked back into the apartment followed by Barnes, Reed, and Officer Henry, who had since arrived. At the threshold, Barnes blocked the officers, saying that they could not enter the apartment, and despite Reed's explanation that they needed to come in to investigate the 911 call, continued to deny them entry.
While this was happening, the officers could hear Mary telling Barnes "Don?t do this" and "just let them in." At this point, Reed attempted to walk past Barnes to enter the apartment, leading Barnes to initiate a physical altercation: he shoved Reed against the wall and a tussle ensued until Reed and Henry had subdued Barnes.

While this ruling does not

While this ruling does not change what is or are not lawful searches or entry, it does raise the bar of police harassment. In essence police officers can entry your home no matter what, with or without a warrant and you cannot resist in any way, shape, or form. The majority court and Simon think these changes nothing since the remedy has always been to use civil lawsuits and the exclusionary rule to determine the legality of the search or the admission of evidence after the fact. They are right, but they ignore the practical and political aspects of this ruling.
1. What is reasonable resistance? If police conduct a search and I did not unlock my door to let them in, did I resist? If the search was later found to be illegal, but I was found guilty of resisting by doing nothing by sitting on my sofa (ie nonviolent) and not unlocking the door could I be charged with a felony. Based on the ruling this is entirely probable is it not?
2. What about warrants? This ruling essentially eliminates warrants for searches. Instead of the onus being on the police to provide reasonable cause to get a warrant prior to a search, now the onus is up to the citizen to show it was an illegal search after the search.
3. Politically this is very unpalatable. The idea that any police officer for any reason can enter your home and that you simply must let them in no questions asked is very distasteful. If a police officer shows up and wants to search your home, does asking to see a warrant and standing in the doorway constitute “reasonable resistance”?
4. In the past you could ask to see a warrant and if the officer did not have one, they could not enter. That is no longer the case. If they want to enter you must let them in then file a lawsuit later. Telling an officer “you can not enter unless you have a warrant” is free- it costs nothing. In theory officers can now enter willy nilly and unless you can hire an attorney to file a civil suit, nothing can be done about it. My guess is that the police will abuse this new power against the poor and middle class because they cannot afford to hire attorneys to file civil suites- they will just let the police conduct illegal searches and get away with it. Corrupt officers will abuse this new ruling and the blue wall will protect them by tampering evidence.
5. This changes nothing for officer safety. If officers continue to enter homes (legally or not) at 1am (it doesn’t matter if they say they are police or not or in uniform or not) the average citizen will barricade themselves and defend their home for fear of imposters.
6. Since the “reasonable resistance” is such a low bar will many people get arrested for it? Let’s say the police bang on the door at 1am and say “open up it’s the police” and you do not open the door. Instead you ask for ID from the officer (which is what the police themselves say to do) is that reasonable resistance? What if you have weapon (gun, knife, bat, etc) on you because you’re not sure who they are?
From a legal POV it does not change much. Illegal searches were always determined after the fact, but the current system of issuing warrants prior to conducting searches reduced the number of illegal searches on the front end. While the ruling does not change what is a legal or illegal search it will increase the number of illegal searches on the back end and the onus will be up to the citizen to prove it was not legal. The burden of proof is now on the citizen rather than the police to show the validity of the search. In essence all searches are legal until proven otherwise. This comes with the bonus that even if the search was determined to be illegal you could still be charged for resistance by simply doing nothing to aid the officer in the search.

Um, no....

You are vastly overreacting to the opinion, just as Simon indicated in his post.

1. It doesn't create new law about what constitutes resisting arrest. If sitting on your couch when police arrive to search your house wasn't resisting arrest then, it's not resisting arrest now.

2. The warrant requirement is not at all eliminated. An illegal search remains an illegal search, and the opinion doesn't in any way shift the burden of proof regarding that. Whether the search was illegal or not never had anything to do with whether a party physically tried to interfere with the cops' entrance to their property.

3. Who said anything about "no questions asked"? The opinion certainly said nothing about "you're not allowed to ask the cop the legal basis for his entry into your home. It just said that if the cop decides to enter, you can't start physically assaulting the cop, as you could a non-police-officer trespasser.

4. Again, this does not change the law. You can still tell the cop he is not allowed to enter without a warrant. If he decides to enter anyway, you simply cannot physically stop him from entering. And why do you think cops will routinely abuse this for poor and middle class people? Any evidence they gather in an illegal search will still be inadmissible in evidence. Sure, a few cops may decide to harass people, but do you think those cops would have been stopped by a homeowner physically assaulting the cop to prevent him from entering the home?

5. This is a correct point; cops are far too quick to do SWAT-style entries into homes these days.

6. Again, the opinion says nothing about being required to open the door for the cops, and says only that you can't physically resist the officers forcing their way into your home.

yes it does change some things

1. I respectfully disagree. I think it has changed. The majority said it themselves:
"We believe, however, that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,"
"In sum, we hold that (in) Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law,"

You have no right to reasonably resist. Non-compliance to a police order “open this door so we can conduct a [illegal] search” is considered resisting thus the officer can arrest you for resisting arrest.

2.I stated that warrants are eliminated for searches, legal or not. Remember “the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law," that means if the office has no warrant but wants to search you cannot resist (reasonable or otherwise). In effect all searches will be allowed and you are not allowed to stop it. If you feel the search is illegal you cannot stop it in real time, you can only address it later in court.
Bottom line is that if an officer wants to search your home they can and you have no recourse to prevent it, you can only challenge the legality of the search after the fact and not prior or during the search. Remember the court did not say “physically resist” it applies to any resistance which includes non-compliance to police orders.

3.You are stuck on the “physically resist” aspect of the actual case. The problem is that the court went beyond that and stated you cannot “reasonably resist” which means no resistance at all- physical or non-physical. If the police officer wants to search your home they can and you cannot impede them in any way physical or not.

4.In the past you could say “no” and physically stop them from entering by not opening or unlocking the door. Does preventing entry by passively leaving the door locked count as reasonably resisting? Roll your dice and find out in Indiana.
Why do I think the poor and middle class will be targeted? Simple they do not have the money to afford and attorney to file a lawsuit for every search the police conduct. The police know this and I am sure a few of them will take advantage of “free” searches. Just because the police search doesn’t mean they have to arrest someone. If you know the people you are searching illegally will not file a civil lawsuit (the only remedy) then why is to prevent the police from abusing this? It is about harassment so the police do not care about getting evidence.

6. No it doesn't. Read the statement. It says reasonably resist which is so broad it goes beyond physical violence and can include non-violence and even non-compliance.

You also have to consider this ruling in conjunction with the previous ruling that upheld no knock warrants. Literally a police office can break into your home and search it without announcing their intent to do so and you cannot even reasonably resist. They can just come in tear up the place, not arrest anyone and leave. You then have to hire an attorney file a civil lawsuit, go to court, if you are lucky the police are honest and do not lie or destroy evidence, win, the fight the appeal, win that, and maybe just maybe you will get some compensation and perhaps an officer fire or go to jail.
Not everyone is up for that. Filing civil suites is no walk in the park. Just in the past few years Indiana has had many of problems officers covering up illegal acts done by other officers. Why give officers cart blanche access to searches when in that case at hand the entry was completely legal (911 call, officers had probable cause by witnessing the incident). Instead the justices said anytime an officer wants to search they can and no resistance (violent or otherwise) will be tolerated, and if the search was in fact illegal then the court will deal with it later.
No one is advocating violence against officers during a legal search or even an illegal search. But it is common practice to passively resist a search which this new ruling would eliminate.

Show me...

Where in the opinion does it say: "Non-compliance to a police order “open this door so we can conduct a [illegal] search” is considered resisting thus the officer can arrest you for resisting arrest."? It just doesn't say that.

Do you really think that physically resisting a search by a police officer is a wise idea?

You are hung up on the "reasonably resist" language. But there's nothing in the opinion which indicates that the court is reading that language nearly as broadly as you are. Nowhere does the court say you must "cooperate" with an illegal entry (such as by unlocking a door).

You keep decrying the arduous nature of the civil remedies available. What world are you living in, if you think that physically resisting a police officer determined to search your house (or you) is a wiser method of asserting your rights (and preventing an illegal search) than taking the cops to court? For the sake of this portion of the argument, please indulge me and assume that the court's ruling is limited to facts similar to those in this case, involving actual, physical resistance to the search in the form of hitting and wrestling with the police officer. If the cop makes a "no knock" entry (and I disapprove of those in about 99% of cases), do you think that physical resistance from the homeowner is going to stop that violation of the homeowner's rights (assuming the cops have made a mistake and don't have a warrant or have gone to the wrong address)?

You are imagining this scenario:

Officer: Knock, knock, I'd like to search your house, but I have no warrant.
You: Gee, I don't think you have a right, but the court said I can't resist, so I will acquiesce to your request to search the house.

That's just lunacy, I'm sorry. If you acquiesce to the search in that scenario, because you fear some court will find that "resistance" to the entry, you'd be nuts.

No warrant = no entry

Resisting an officer is not a wise idea since you will lose both battles (physical and in court). If you can manage to live through the initial assault on your home you might have a chance in court.
Of course the Marine in AZ did not resist at all and the police killed him in his own home. And just as in 99% of police misconduct cases they circle the wagons. They start tampering evidence, making sure everyone tells the same lie, create bureaucratic red tape, and are very uncooperative.
In the past if an officer wanted to search your home they would ask and you could refuse by saying “do you have a warrant?” The officer would say “no” and then they would either get a warrant or leave. What this ruling does is eliminate that process. If you say “No you cannot come in” even though it is an illegal search is that “resisting “?
If the police want everything to be legit (no evidence thrown out) in court they will continue with using warrants and searches as they always have. What this ruling seems to so is green light fishing expeditions by the police under the flimsiest probably cause allegations.

No, it's not.

You ask "If you say 'No you cannot come in' even though it is an illegal search, is that 'resisting'?" It's not. Judicial precedents are based on facts. They are not interpreted without reference to the underlying facts. There is absolutely no basis whatsoever in this opinion to believe that any court will find that saying "no, you may not come in" constitutes "resistance." No court is going to hold that. THIS case involved a man who physically attacked cops who were in the process of entering the apartment to investigate an obvious domestic disturbance.

Simon pointed out elsewhere that a majority of states have done away with the old rule, and now follow the rule laid down by this court. Go look, see if you can find a single case in any of those states where "no, you may not come in" was found to constitute "resisting" the officer's illegal entry. When you can't find one, then you can, perhaps, calm down about this.

Well Put Sir.

I agree almost entirely. But I don't believe it's conservative paranoia that drives today's fear of government intervention on society. It's a more liberal disdain for the use of police force at work here. Conservatives have always supported stricter law enforcement even advocated for the death penalty in the past. 50 years ago this story would have never found it's way to the level of national news. Growing support for the liberal movement to limit police jurisdiction has created a modern situation where people who once obeyed the law out of fear now feel emboldened against it. As technology expands and crimes become more easily concealed we as a society must equip our police with the proper tools(and rights) to remain effective. On the other hand a man sitting on 50 kilos of cocaine has to leave his home to sell it sooner or later ;)


I will say that our anonymous commentator is correct on one point, I don't see why the court needed to reach this conclusion. It went on to say that, under the circumstances, the officers acted reasonably... i.e., the entry into the dwelling was legal. Having determined that, there was no need to address the issue of resistance to unlawful entries.

There are some fundamental dangers to this opinion, though not of the "OMG, cops no longer have to get warrants!" variety.

No, the real danger is to the folks who shoot a cop in the course of some late-night, no-knock entry into the wrong house. There have been several folks prosecuted (and convicted) for that, even without such a ruling. Of course, fewer people are prosecuted for doing that than are shot dead by the cops (which is why submission to the cops, even if their actions are illegal, is the wisest course of action in the heat of the event), but this ruling basically makes the homeowner liable for shooting the cop, even if the cop is 100% in the wrong (no warrant, wrong house, etc.), so long (presumably) as one of the cops on the raid yells "police!" in a way that maybe the homeowner might could have heard it.

What if?

What happens when someone comes to my house claiming to be cop? How do I prevent them from entering my home?

If you have reasonable

If you have reasonable suspicions that they aren't a cop, call the cops.

It seems to me that the

It seems to me that the danger of violence--whether the right house or the wrong one--goes up if people believe they have a right to resist and drops if they do not. And I think the argument (right or wrong) for deciding the issue is the battery charge; presumably, the theory would go that if Barnes had a right to resist and the entry was legal, that charge couldn't stand.

This ruling is treasonous,

This ruling is treasonous, and no amount of wordsmithing can possibly support it. The 4th Amendment clearly does not allow an illegal entry into one's home. You are mistaken, and your support of this treason frankly causes me to stand in imminent fear of my personal safety and my life. That qualifies as domestic terrorism.

No, it's not...

All this ruling did was say that if the cops attempt to force their way into your house, you don't get to decide right then and there, in the heat of the moment, that the entry must be illegal, and shoot them dead, as you could other trespassers into your home. It most decidedly does NOT "allow" illegal entry into your home, it just says you can't shoot a cop who is in the process of making what you consider to be an illegal entry into your home. And I think that's a decent rule, and the fact that you are so trigger-happy you are ready to mow down cops makes ME "stand in imminent fear of my personal safety and my life."

Dan, I'm afraid it's you

Dan, I'm afraid it's you who's mistaken: You've quite evidently read neither the case nor my post. No one--not me, not Barnes, no one--disputes your point that "[t]he 4th Amendment clearly does not allow an illegal entry into one's home." That isn't what the case is about.

The case wasn’t about that

The case wasn’t about that but the Judge’s opinion made it about illegal entry. The problem is that the comments basically state that all entries into ones home are legal by police when it comes to the issue of home owner resistance (violent or otherwise) for the safety of the police officer.
You can not contest the legality of the entry at the moment of the entry, but at some later time in the future. In essence the police are allowed to conduct illegal behavior until a court says it is illegal. No one else gets this kind of free pass except the police. By this logic if someone robs a bank they can keep the money when caught and don’t have to give it back until they are found guilty of stealing. Does that make sense?

Wrong, again...

"You can not contest the legality of the entry at the moment of the entry..."

Show me the language in the opinion that says that. In fact, it does not. You're just wrong. This has been explained many, many times in this thread. If you wish to participate in the comments, please read the other comments and actually address what they have to say.

You say that "The problem is

You say that "The problem is that the comments basically state that all entries into ones home are legal by police when it comes to the issue of home owner resistance," but the case says no such thing, either explicitly or by implication. The case is about remedies.

You say that one "can not contest the legality of the entry at the moment of the entry, but at some later time in the future." That isn't true either, as Pat noted above, unless by "contest" you mean after the manner of a boxer or a street fighter. Assuming they knock and you answer the door, you are perfectly at liberty to put your case to the police, to ask to see the warrant, to ask what circumstances require entry, and so forth. What you are not allowed to do is to physically resist them if, after you contest the legality of their entry, they conclude that they have the right to enter. At that point, your rights are violated (or perhaps not; most entries and arrests, even those to which the arrestee objects, are perfectly legal), and your remedy is legal.

Lastly, you say that "[i]n essence the police are allowed to conduct illegal behavior until a court says it is illegal." After a fashion, I suppose that is true, in a strained manner, in this sense: as a matter of sheer brute force, the police are allowed to enter a home at risk that a court will later punish their behavior. But the same is true for all other behavior by any other actor. In the same sense, you are allowed to go around setting fire to people's houses until a court says it is illegal and throws you in the slammer. In a legal sense (indeed, in normal parlance), however, we wouldn't say that conduct which is illegal but which a person is physically capable of doing is allowed until a court punishes it. We would say it isn't allowed. And in that sense, in the normal meaning of the words, the police are not allowed to conduct illegal behavior.

What's ultimately so silly about this is the John McClane fallacy: The idea that if you can't personally and physically defend your rights on the spot, if you can't prevent rather than redressing a violation of your rights, your rights don't exist. That's wrong, and indeed, absurd: Not only does that imply that the strong have real rights while the weak must make do with merely legal remedies, it is desperately unrealistic. If you physically resist arrest, you will not prevent your arrest. You will not prevent the (supposed) violation of your rights. Do you really think that if sock the constable in the jaw, he'll think twice before violating your rights? Of course not. Barnes aptly illustrates what will happen: The cops will do precisely what they were going to do, adding whatever additional force is required to get the job done. Instead of handcuffs, you'll get pepper spray, a tazer, perhaps even a bullet. So in fact, all that physical resistance accomplishes is the transformation of a peaceful arrest into a violent one in which both you and one or more officers may be hurt, for absolutely no reason.

I have one big objection to this ruling.

Simon, you make some excellent points in your post that I hadn't thought of before. But my primary concern with this ruling can best be illustrated through a hypothetical scenario:

Let's say a couple of enterprising criminals plan to pose as police officers in order to enter my home and rob/rape/murder me and my family.

Under this ruling, I would not be able to reasonably resist their entry, because I BELIEVE they are legitimate police, even if I also believe the entry is illegal. By the time I figure out that they are not police, they have already gained entry into my home.

Unlikely scenario or not, is this not a legitimate concern? I think you may be overemphasizing "minor unlawful" entries and searches, and downplaying the risks of more violent encounters.

Isn't the 4th Ammendment supposed to prevent the violation of my rights, rather than provide remedies to me after the fact?

you can check ID

This ruling doesn't say that you don't have the right to ascertain the legitimate identity of law enforcement officers.

About your last point I

About your last point I agree, and I'd add most of the arguments against the immigration law in Arizona are based on the same confusion. The AZ Supreme Court already had a ruling which stated that if a judge found that a police action is based on racial profiling, all charges that arose from the case could be thrown out.

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