Challenged by technology. If you checked in here before 4:00 yesterday afternoon and wondered why there wasn't a post, it's because it took me that long to realize that I hadn't clicked on the little "publish" button after finishing up the post yesterday morning. Understandable mistake; I mean, it's not like I've been doing this for years. Anyway, if you want to read my thoughts on the Supreme Court's decision earlier this week in Kentucky v. King -- and let's face it, who doesn't? -- that post is right below this one.
What were they thinking, Chapter 24. Okay, I can sort of sympathize with Richard Connelly, a writer for the Houston Press Blogs. Sometimes it's just damned hard to come up with ideas for subjects. Happens to me; there have been times when I've seriously considered making up a case just so I'd have something to write about. But Richard, really? "The 10 Hottest Women on the Texas Sex Offenders List"? Assuming you and everybody else on the editorial staff is older than 14, did nary a one of you stop to think, "you know, this might not be in the best taste"? In fact, Richard could've saved himself some trouble by calling me. No, not that I could have steered him clear on the taste issue, given that I'm firmly ensconced in my glass house in that regard. But I could have told him that, based on my 35 years of experience in representing criminal defendants, the female ones don't seem to have foresaken careers as a supermodels, if you know what I mean.
Which you could have gleaned if you clicked on the link above, and then clicked through all three pages of pictures. You would have realized that "hottest" seems to be a very relative term in the Lone Star State. Kinda makes you think that maybe the gal on the right just missed the cut, huh?
At any rate, Connelly eventually apologized, and went back to work on his next piece, "The 10 Worst 'Don't drop the soap in the shower' stories of Texas inmates."
Just say no. The beating taken by the 4th Amendment last week wasn't limited to the King decision. The Indiana Supreme Court accomplished the seemingly impossible mission of getting conservatives and liberals to agree on something: that its decision in Barnes v. Indiana, holding that citizens have no right to resist unlawful entry by the police into their homes, was appalling. The facts of the case were that the police had gone to Barnes' home in response to a complaint of "domestic violence in progress," and engaged Barnes in a heated argument in the parking lot. When Barnes went back inside the apartment, he refused the officers' request to enter; when one did, Barnes shoved him against a wall. Barnes was convicted of battery on a police officer, and appealed, arguing that the trial court should have instructed the jury that he had the right to resist unlawful entry in his home.
Although I'm not in agreement with the court's position -- we'll get to that in a minute -- it's not as easy a call as many have made it out to be. At common law, one had a right to resist an unlawful arrest, but that right was largely eliminated in the past forty or fifty years, either by statute or court decision. (Here in Ohio, the Supreme Court's 1975 decision in Columbus v. Fraley accomplished that; one can use force to resist only when the officer uses excessive or unnecessary for in making the arrest.) The justification was the "drastic changes" in society; as one court put it, "the era when most arrests were made by private citizens, when bail for felonies was usually unattainable, and when years might pass before the royal judges arrived for a jail delivery, is past." Disputes as to the legality of the arrest should be resolved in the courts, not the streets.
The result in Barnes was based on similar public policy decisions. As the court put it,
we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance.
One of the problems with Barnes is the facts: it's not at all clear that the entry was unlawful. The majority (it was a 3-2 decision) argues that the officers acted reasonably, and that "it is unrealistic to expect officers to wait for threats to escalate and for violence to become imminent before intervening." Even one of the dissenters would have held that it was unlawful to resist police entry regarding a domestic violence call.
But the problem with the decision, as noted by the other dissenter, is that this was not simply a policy call: the right to resist an unlawful entry stems from the 4th Amendment, not merely from common law. And the home is certainly the one area still given staunch protection by the Amendment.
Until last week, anyway. Oh, and Barnes wasn' t that court's only decision on search and seizure. On Tuesday, they upheld the right of the police to enter a home without knocking if the officers decided that circumstances justified it. Prior to that, the police would have to get a judge's permission to serve a warrant without knocking.
Perhaps it's fitting to close with William Pitt's remarks during a debate in Parliament in 1763:
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter –- all his force dares not cross the threshold of the ruined tenement!