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UNLAWFUL POLICE ENTRY: Is "self defense" still permissible?

Posted by attorney Samuel Spital

In the case of BARNES vs. STATE OF INDIANA, the Indiana Supreme Court on May 12, 2011, held there is no right to “reasonably resist" an unlawful entry into a private residence by law enforcement officers. The Court argued public policy favors rejecting the fundamental and three hundred years of precedent, English common-law, right to be safe and secure in one’s residence and to reasonably resist police officers’ unlawful entry. In part, the Court based its ruling on the fact allowing one to resist law enforcement unlawful entry “unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved…"

The Indiana Supreme Court has joined about 40 other states in limiting a homeowner &/or occupant's Fourth Amendment right to privacy and to be free and secure in their home. Criminal defense counsel and many commentators feel society should not have to fear an unwarranted intrusion by the government (e.e law enforcement); and, one should have the right to self-defense in such a situation.

Under Penal Code section 148(a)(1), it is a misdemeanor offense in California to intentionally (willfully) resist &/or obstruct a law enforcement officer; the penalty for resisting arrest is a fine up to $1000 or county jail up to one year.

The role of legal counsel is to examine all of the facts and circumstances and, of course, to mount a powerful defense. One of the arguments entails a focus on the “unlawfulness" of the officer’s conduct in performing his or her duties at the time of the arrest. Another aspect of this defense involves an argument that the law enforcement officer used unreasonable and excessive force at the time of the arrest.

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