Indiana Supreme Court Upholds the ‘Rapist Doctrine’: Don’t Resist — You’ll Just Make It Worse

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The Indiana State Supreme Court has just nullified the Fourth Amendment and the equivalent provision of that state’s constitution, in addition to “a common law dating back to the English Magna Carta of 1215,” notes a wire service report. In a 3–2 decision, the court has ruled that Indiana residents have no right to obstruct unlawful police incursions into their homes.

“We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” wrote Justice Steven David. “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

Actually, the “risks” to a government-licensed bully in such an encounter are vanishingly small. But we must remember that “officer safety” is  the controlling priority in any conflict between a State-sanctified enforcer and a mere Mundane. This is why, as Professor Ivan Bodensteiner of Valparaiso University School of Law observes, “It’s not surprising that [the court] would say there’s no right to beat the hell out of the officer.” No, that “right” belongs to the costumed thug; the Mundane has no choice but to submit to whatever invasion or injury his tax-sustained assailant sees fit to inflict at the time.

A victim of criminal police aggression “still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system” — that is, the same court system that has conferred its unconditional benediction on criminal violence by the police. This assumes, of course, that the Mundane survives the initial encounter.

Note how the court assumes — correctly, in my view — that an unlawful arrest is the all-but-inevitable product of an unlawful police incursion. This tacitly recognizes that the right to resist an unwarranted search is derivative of the common law right to resist unlawful arrest.

A similar case explicitly dealing with the right to resist unlawful arrest  (People v. Moreno) is working its way through the bowels of the judicial system in neighboring Michigan, and will most likely result in another decision pulled from the emunctory aperture of a robe-wearing sophist on the state Supreme Court. A state appeals court in Michigan has observed that “we find no reference to the lawfulness of the arrest or detaining act” in the state’s statute dealing with resisting arrest, which “states only that an individual who resists a person the individual knows or has reason to know is performing his duties is guilty of a felony.”

In a 2004 ruling (People v. Ventura) dealing with a self-defense claim against an unlawful arrest, the same Michigan Court of Appeals, in prose laden with disingenuous mock humility, wrote that “it is not within our province to disturb our Legislature’s obvious affirmative choice to modify the traditional common-law rule that a person may resist an unlawful arrest.” Actually, that modification came about because the state judiciary begged the legislature to change the state code to eliminate statutory protection for the long-established individual right to resist unlawful arrest.

In a 1999 ruling (People v. Wess), the Michigan Court of Appeals, citing the state legal code, admitted that citizens had a right, explicitly protected by state statute, “to use such reasonable force as is necessary to prevent an illegal attachment and to resist an illegal arrest.” In the dicta of that ruling the court pleaded with the legislature to change the law:

“We share the concerns of other jurisdictions that the right to resist an illegal arrest is an outmoded and dangerous doctrine, and we urge our Supreme Court to reconsider this doctrine at the first available opportunity… we see no benefit to continuing the right to resist an otherwise peaceful arrest made by a law enforcement officer, merely because the arrestee believes the arrest is illegal. Given modern procedural safeguards for criminal defendants, the `right’ only preserves the possibility that harm will come to the arresting officer or the defendant.” Of course, the requirement that a police officer obtain a warrant is the only “procedural safeguard” that matters — and it’s the one effectively disposed of once the court authorizes police to invade a home on a whim.

In 2002, the Michigan state legislature complied by modifying  the relevant section of the state code (MCL 705.81d) by removing the clause recognizing the common law right to “use such reasonable force as is necessary to prevent” an unlawful arrest (that is, an armed kidnapping) by a police officer.

In the interests of brevity, these rulings should be consolidated under the name “Rapist Doctrine,” in recognition of the fact that are pseudo-scholarly versions of the advice once urged upon women enduring sexual assault: Don’t resist — it will only make things worse.

10:40 am on May 13, 2011