Judicial Insanity in Indiana

Recently, a rather shocking “judicial opinion” was handed down by a bare majority of the Indiana Supreme Court, to the effect that it is supposedly illegal under Indiana’s “public policy” for any individual to resist an unlawful search, seizure, arrest, or other assault or detention by rogue law-enforcement officers (or, presumably, any other rogue public officials purporting to enforce, but actually violating, the law).

Many people are rightly concerned that this decision will provide more grist for the mill of the national para-military police state now being elaborated around the misnamed Department of Homeland Security, which is stretching its tentacles into every State and Local police department. No doubt it will—and perhaps was even intended to do so. For, plainly, this decision is an all-out frontal attack on a principle well known to the Founding Fathers. As Sir William Blackstone observed, “[s]elf-defence * * * , as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society”. Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, Subscribers’ Edition, 4 Volumes & Appendix, 1771-1773), Volume 3, at 4.

Protective measures, though, are available. WE THE PEOPLE are not at the mercy of the ideological descendants of Reinhardt Heydrich and Lavrenti Beria who seem to have usurped control over much of America’s contemporary “judiciary”. For Indiana, as well as every other State in the Union, has a government of legislative supremacy subject to popular sovereignty. So, this most recent “judicial” travesty can be rectified in Indiana, and prevented in other States, by the simple expedient of a statute.

As a public service, I have drafted a model bill that, with a bit of workmanlike tinkering by local lawyers to fit it into the possible peculiarities of each State’s own code, should do the job (at least as a first step).

I am confident that, in many States, foresighted patriots will put this suggestion to good use.

AN ACT TO GUARANTEE THE RIGHT OF SELF-DEFENSE TO THE PEOPLE OF […name of State…]

SECTION 1. The State of [ … ] recognizes that the right of personal self-defense is an unalienable right that no just government, or any official of any such government, may abridge, infringe, or burden at any time, for any reason, or to any degree.

SECTION 2. No individual within this State shall be denied, prevented from exercising, or penalized for having exercised, the right to defend

(a) his or her person in any place; or

(b) the person of any member of such individual’s family, or any friend, associate, or co-worker in any place; or

(c) the privacy of such individual’s home, permanent or temporary residence, place of employment, or vehicle; or

(d) the security of such individual’s property, possessions, papers, and other effects of whatever nature, wherever they may lawfully be kept; or

(e) the privacy of the home, permanent or temporary residence, place of employment, or vehicle of any member of such individual’s family, or any friend, associate, or co-worker who has, directly or indirectly, placed such home, permanent or temporary residence, place of employment, or vehicle in such individual’s custody or under his or her supervision or care; or

(f) the security of the property, possessions, papers, and other effects of whatever nature, wherever they may lawfully be kept, of any member of such individual’s family, or any friend, associate, or co-worker who has, directly or indirectly, placed such property, possessions, papers, or other effects in such individual’s custody or under his or her supervision or care,

against an unlawful search, seizure, arrest, or other assault or detention, or unlawful attempted search, seizure, arrest, or other assault or detention, by any law-enforcement officer or other public official of this State or any of its political subdivisions, so long as such individual employs in his, her, or another’s defense, or in the defense of the privacy or security of his, her, or another’s home, permanent or temporary residence, place of employment, vehicle, property, possessions, papers, or other effects, no force or threat of force greater than he or she reasonably believes at the time to be necessary under the circumstances in order effectively to deter, repel, or otherwise resist such unlawful search, seizure, arrest, or other assault or detention or unlawful attempted search, seizure, arrest, or other assault or detention.

SECTION 3. In any civil action or criminal prosecution in which is at issue an individual’s exercise of his or her right of self defense with respect to an actual or attempted search, seizure, arrest, or other assault or detention by any law-enforcement officer or other public official of this State or any of its political subdivisions—

(a) The lawfulness or unlawfulness of such actual or attempted search, seizure, arrest, or other assault or detention shall be determined before any other issue is heard and decided.

(b) The party or parties asserting the lawfulness of the said actual or attempted search, seizure, arrest, or other assault or detention shall have the burden to produce competent evidence thereof beyond a reasonable doubt.
(c) No matter how any other issues in the action or prosecution may be tried or decided under applicable law, the issue of the lawfulness or unlawfulness of the actual or attempted search, seizure, arrest, or other assault or detention shall be tried to a jury, in which proceeding

(i) the jury shall consist of twelve persons;

(ii) the jury shall be instructed that the reasonableness of the force or threat of force that was employed by the individual in the exercise of his or her right of self-defense must be determined from the viewpoint of the individual at the time that he or she so acted; and

(iii) the jury shall be instructed that it may judge, not only the facts, but also the law under color of which arose the actual or attempted search, seizure, arrest, or other assault or detention; and

(iv) the jury’s verdict must be unanimous.

SECTION 4. In any civil action, howsoever and by whomsoever initiated, in which is at issue an individual’s exercise of his or her right of self defense with respect to an actual or attempted search, seizure, arrest, or other assault or detention by any law-enforcement officer or other public official of this State or any of its political subdivisions, the said individual may cause to be named or joined as adverse parties any or all of the individuals who counseled, authorized, planned, or participated in such actual or attempted search, seizure, arrest, or other assault or detention, for the purpose of adjudicating the lawfulness thereof. In the ensuing litigation, no defense of or other argument based upon official immunity, whether absolute, qualified, or of any other kind or degree whatsoever, shall be allowed.

And if the jury determines that such actual or attempted search, seizure, arrest, or other assault or detention was unlawful, then each and every individual who counseled, authorized, planned, or participated in such actual or attempted search, seizure, arrest, or other assault or detention shall be personally liable, jointly and severally, for all damages suffered by the individual who exercised his or her right of self-defense, as well as for all reasonable attorney’s fees, expenses, and other costs which that individual incurred in litigating the question of the unlawfulness of the actual or attempted search, seizure, arrest, or other assault or detention. Provided, that no portion of any damages, attorney’s fees, expenses, or other costs imposed upon any individual under this subsection shall be paid by any public treasury, office, fiscal agent, or other authority of the State or any political subdivision thereof; nor shall any such public treasury, office, fiscal agent, or other authority reimburse or make whole any such individual, either directly or through insurance, guarantee, surety, or any other third-party payment, for any such damages, attorney’s fees, expenses, or other costs

vieiraDr. Edwin Vieira  is IAI’s Distinguished Senior Fellow in Jurisprudence and Constitutional and Monetary Law.

This article was originally published originally published at NewsWithViews.com on May 21, 2011.

The opinions published here are those of the writer and are not necessarily endorsed by the Institute.

 

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