In a story I saw this morning on The Raw Story (and spreading like wildfire throughout the news services), late last week the Indiana Supreme Court ruled that the Fourth Amendment to the Constitution of the United States is no longer necessary.
Seriously.
In a case before the Court, in which a man involved in a domestic dispute refused to allow officers into his home, but entry was forced by the officers present without a search warrant or clear probable cause, the Indiana Supreme Court ruled in a 3-2 ruling that, in fact, the Fourth Amendment is no longer applicable. According to the Raw Story article, the Court reasoned that
"current 'public policy' is not conducive to resisting entry because civil protections have arisen to mitigate the threats of pre-industrial prison life -- threats like indefinite detention, violence or disease from unclean, overcrowded facilities."In addition, the Court's majority opinion, written by Justice Stephen David and supported by Justices Shepherd and Sullivan, reads like an Orwellian fiction. Justice David actually writes
"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. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action...we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment."I personally find it fascinating that Indiana State Supreme Court Justices now believe it is within their scope to override the Constitution and the Bill of Rights. The two dissenting Justices, Justice Dickson and Justice Rucker, were similarly appalled. As Rickson notes in the dissent,
"But the common law rule supporting a citizen‘s right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the United States Constitution...In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home."Interestingly, this is something on which I and the conservative commenters on the Fox News website agree. Fox News is carrying this story and the commenters are, for the most part, outraged. Wherever we part ways, it's at least after the Fourth Amendment.
Looking further into Justice David, who was appointed to the bench last year by Governor Daniels, at the time of his appointment the Governor praised David for his "deep respect for the boundaries of judicial decision-making" and claimed "He will be a judge who interprets rather than invents our laws."
