Archive for May, 2011


4th Amendment on Life Support in Indiana

   Posted by: Robert    in Law

May 12th was a bad day for “the right of the people to be secure in their persons [and] houses” in Indiana.  In a ruling by the Indiana Supreme Court, the Indiana justices have taken away the historic right of every individual to resist unlawful arrest by police.  In so doing, the Court takes what should have been a relatively modest case and turns it into a significant watershed of constitutional law.  The ruling is wrong on the law, and inconsistent with American values of liberty.

“The majority tethers its abrogation of [the right to resist unlawful arrest] on (a) modern developments that have diminished the dangers of arrest at common law (e.g., indefinite detention, lack of bail, disease-infested prisons, physical torture), (b) the desire to minimize the risk of the level of violence and risk of injuries, and (c) the rights of the police to enter a home even without a warrant under certain circumstances.” (Dickson, J. Dissenting) None of these, however, are appropriate reasons to cast aside centuries of legal history and infringe upon constitutional values.

The majority cites five modern developments that have diminished the aforementioned dangers from arrest.  These developments are “(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.”  It is noteworthy that modern developments 1 and 2 are exactly as modern as the Fourth Amendment — bail is available under the Eighth Amendment1, prompt arraignment under the Sixth Amendment((the accused shall enjoy the right to a speedy and public trial)), and the need for probable cause under the Fourth Amendment itself2 — yet the founders saw fit to include the protections of the Fourth Amendment anyway.  Modern development 3 is, at best, a remedy to which is only meaningful after the police have acted unlawfully and only if the arrestee is later charged.  Modern development 4 lacks any level of constitutional character, which would force arrestees rely on voluntary police procedures to vindicate constitutional rights.  Finally, it has been recently argued3 that modern development 5 is not sufficient to cure the constitutional defect of unlawful police conduct, particularly in light of the doctrine of qualified immunity.

Regardless of the supposed benefits of these modern developments, it should also be noted that each and every danger listed is addressed and prohibited by a provision of the Constitution.  Indefinite detention is prohibited by the Fifth Amendment4 and by Article 1 Section 9 of the Constitution5.  The lack of bail, as already mentioned, is prohibited by th Eighth Amendment.  Disease-infested prisons have long been held as a violation of the Eighth Amendment6.  And the torture of prisoners is among the precise evils that the founders wrote the Eight Amendment Cruel and Unusual Punishment clause to prohibit.  If the right to resist unlawful arrest was merely a tool to prevent the aforementioned dangers, then the right should never have survived ratification of the Constitution.

The desire to minimize the risk of injury has become a common theme in modern Fourth Amendment jurisprudence.  The general argument has been that police need the authority and capability to control a situation, and courts reviewing police action should generally err on the side of allowing too much, rather than too little, freedom for law enforcement to act.  As I have thought in prior cases and continue to believe now, that analysis is exactly backwards.  The Bill of Rights was written to provide a number of safeguards for the people against the police.  If the police are generally free to do as they please, then constitutional protections are meaningless.  While preserving the safety of the men and women who serve in law enforcement is vitally important, I cannot believe that it is more important than preserving the bedrock liberties upon which our nation was founded.

Finally, the Court points out that police can sometimes enter a home even without a warrant.  This is both true and irrelevant.  This case is about the police acting unlawfully.  If the police had a right to enter the house, then entering the house would not have been unlawful, but resisting the police would have been.  If the Court believes that the arrest in this case was lawful, then they should say so.  What they have done instead is use the possibility that the police may act lawfully in some other case as a basis to give the police a general right to act unlawfully.

The Constitution was designed to provide the government sufficient authority to keep the people safe, while simultaneously keeping the people safe from the government.  Nothing in the history of our founding suggests that the exclusive protection against police misbehavior is to “tell it to the judge.”  Indeed, by then, it’s already too late.  The right of the people to resist an unlawful arrest has been recognized since the 13th century and has been reaffirmed as “an undoubted right” by the US Supreme Court as recently as 1948. (United States v. Di Re)

The weight of history and the importance of preserving liberty are far more compelling than the weak arguments made by the Indiana Supreme Court in casting aside the right to resist unlawful arrest.  I believe Justice Dickson’s dissent is correct.

  1. Excessive bail shall not be required []
  2. no Warrants shall issue, but on probable cause []
  3. Herring v. United States, Ginsburg, J. Dissenting []
  4. No person shall be… deprived of … liberty … without due process of law []
  5. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. []
  6. nor shall cruel and unusual punishment be inflicted []