On May 12, 2011, the Indiana State Supreme Court delivered itself of a startling 3-2 ruling:
A jury convicted Richard Barnes of Class A misdemeanor battery on a law enforcement officer, Class A misdemeanor resisting law enforcement, and Class B misdemeanor disorderly conduct. Barnes contests that the trial courtâ€˜s failure to advise the jury on the right to reasonably resist unlawful entry by police officers constituted reversible error and that the evidence was insufficient to sustain his convictions. We hold that there is no right to reasonably resist unlawful entry by police officers.
This flies in the face of centuries of British and American common law and, as the dissenting justices point out, U.S. Supreme Court decisions as well.
In Miller v. United States, 357 U.S. 301, 313-14 (1958) the United States Supreme Court held that it was unlawful to arrest the defendant on criminal charges when a warrantless arrest was conducted by police officers breaking and entering the defendantâ€˜s apartment without expressly announcing the purpose of their presence or demanding admission. In recounting the historical perspective for its holding the Court quoted eighteenth century remarks attributed to William Pitt, Earl of Chatham, on the occasion of a debate in Parliament:
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 â€“ all his force dares not cross the threshold of the ruined tenement!
Id. at 307. The same is no less true today and applies equally to forces of the State.
At issue in this case is not whether Barnes had the right to resist unlawful police entry into his home â€“ a proposition that the State does not even contest â€“ but rather whether the entry was illegal in the first place, and if so, whether and to what extent Barnes could resist entry without committing a battery upon the officer. Federal Fourth Amendment jurisprudence is equal to the task of resolving these issues.2 In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally â€“ that is, without the necessity of a warrant, consent, or exigent circumstances. And that their sole remedy is to seek refuge in the civil arena. I disagree and therefore respectfully dissent.
Note that this was a 3-2 decision that stripped a right recognized at every level of our legal system, as well as British and American common law: A man’s home is his castle, and he has the right to resist illegal entry into it – by anybody, including minions of the state. This court stripped the guarantee of that right from the citizens of Indiana.
And who was the pivotal player in this judicial drama? A gentleman named Steven H. David, who authored the majority opinion.
…And who is David? Here is what Severino reports:
David is a former chief defense counsel for detainees at Guantanamo Bay who praised the majority opinion in Boumediene v. Bush with this trite quote: “The most important thing that Boumediene held is something that I always thought was obvious … that in America, there are no law-free zones.” Or maybe he could explain why the official Steven David bio released by his office announced the fact that David is a member of the American Judicature Society, the leading institutional proponent of the Missouri Plan, and beneficiary of more than $1 million in contributions from George Soros’s Open Society Institute since 2000. Daniels may well have chosen the least bad option presented to him by the commission, but that cannot excuse him supporting a system that ties the governor’s hands to such an extent that he can only choose the least offensive of three liberal nominees.
So, yes, Mr. David, apparently an enemy of the right to resist the minions of the state when they attempt to illegally enter your home, was appointed by Mitch Daniels, a much-rumored Republican candidate for the Presidency of the United States in 2012.
And what Rubin had to report with regard to Danielsâ€™ record in appointing judges in Indiana was disturbing in the extreme. Here is what Carrie Severino had to tell us:
The single most important judicial issue in Indiana is the ongoing debate over the state’s method for appointing appellate judges. It’s not much of a debate, actually, thanks in part to Daniels. Indiana uses a form of the Missouri Plan, the commission-based method for choosing judges that was designed by Progressive Era lawyers to put “experts” in charge of judicial selection. The “experts,” of course, are lawyers. When the issue was in front of Daniels, he took the worst possible approach. In 2009, overwhelming majorities of the Indiana General Assembly (88-3 in the House, 35-15 in the Senate) approved legislation to kill that method in parts of Indiana. Governor Daniels vetoed it. …
Then, when Indiana had a supreme court vacancy to fill, he failed to say a single word about the state’s flawed judicial-selection process and dutifully appointed a nominee sent to him by the state’s nominating commission.
So, when considering Governor Daniels in your choices for the nomination, ask yourself: Is this the man you want appointing Justices to the Supreme Court of the United States? (via SteveF – thanks!)
UPDATE: Welcome, Instapundit readers!