Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws."

From the Constitution of the Commonwealth of Massachusetts, Part the First, Article XIV, written by John Adams. It's a short jump from there to the Fourth Amendment to the US Constitution, which reads thusly:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Wikipedia page about the Fourth Amendment goes into considerable detail about exceptions and exclusions and limitations, noting the following:

The Bill of Rights originally only restricted the power of the federal government. However, in Wolf v. Colorado, the Supreme Court ruled that the Fourth Amendment is applicable to state governments by way of the Due Process Clause of the Fourteenth Amendment. Moreover, all state constitutions contain an analogous provision.

Although Barnes v. State of Indiana seems to have created an exception:

Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday [12 May 2011] that Hoosiers have no right to resist unlawful police entry into their homes.

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry.

"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," David said. "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."

There are several things seriously wrong with this premise. For one, it elevates mere "public policy," which by definition is subject to change, to the status of Constitutional law. What's more, the reference to "modern Fourth Amendment jurisprudence" is absurd, since it assumes that there was something wrong with the Fourth Amendment in the first place and it took latter-day stretching and squeezing and finagling to make it finally acceptable. This is not quite the equivalent of wearing a "The Bill of Rights sucks" T-shirt, but it's close.

And that bit about "escalat[ing] the level of violence" is straight out of Mob parlance: "Do it our way and you won't get hurt." Forget the law, forget privacy, forget all that stuff: we have bullets, and we're not afraid to use them.

Not that Mr. Justice David is particularly worried about those niceties:

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

Shorter version: "Yeah, we can run you down with a bus, but your heirs can sue for the costs of burial."

Not that anything in David's history would explain why he'd come up with a notion like this.

Oh, wait:

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.

And what is this "Missouri Plan"?

Under the Plan, a non-partisan commission reviews candidates for a judicial vacancy. The commission then sends to the governor a list of candidates considered best qualified. The governor then has sixty days to select a candidate from the list. If the governor does not make a selection within sixty days, the commission makes the selection.
This is supposed to take the politics out of judicial selection. Yeah, right. Here's what it did when Tennessee adopted it:

[T]he method has instead given disproportionate influence to the state trial bar and tilted state courts leftward. The Tennessee plan is set to expire this summer [2008], requiring it to be renewed, reformed, or left to disappear when the legislative session ends this month.

Not if the trial lawyers can help it. Under the current process, nominees to the state appellate court and state supreme court are chosen by a 17-member nominating commission, of which 14 are lawyers and 12 are chosen from among five lawyer groups, including the Tennessee Association for Justice (aka the Tennessee tort lawyer lobby), the Tennessee Bar Association, the District Attorneys General Conference and the Association of Criminal Defense Lawyers.

The Plan was subsequently extended to 2012.

Dan Miller has his doubts that Barnes will be reviewed by SCOTUS:

This case may not get to the Supreme Court of the United States; that requires time and money. It should get there because it purports to abrogate in Indiana prior Supreme Court rulings on the Fourth Amendment and because cases embodying bad law tend to breed and multiply. They seem to enjoy higher fertility rates than do cases embodying good law.

Gresham's law of currency apparently applies equally to law.

Perhaps unintentionally, Steven David has provided the Ultimate Litmus Test for any and all candidates for public office in the United States. I suggest that a copy of the Indiana court's decision be provided to every candidate. The ones who for whatever reason fail to denounce it as the un-American intrusion on basic human rights that it is and inevitably some will will have given prima facie evidence that they are unfit to serve.

The Vent

  15 May 2011

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 Copyright © 2011 by Charles G. Hill