TexasCHLforum.com

Heartland Patriot wrote:Someone feel free to correct me if I am wrong (and I'm sure someone will, ha ha).

I think you've got a pretty good handle on it all. Hopefully, it will be corrected if it goes to appeals.

My concern with the these "Justices" in Indiana is that besides shooting down the 4th amendment, they've give B & E criminals a new tool. Here in Houston we've had some instances of BG's kicking down the door dressed in jackets imprinted with 'POLICE" in bold letters. They screamed "police, police!" as they kicked in the doors. Then they tied people up and robbed them.

That is always a concern/fear Dave. I haven't done anything to draw the attention of LE, but I do fear the incorrect address search warrant with a no knock entry.

If my wife and I are ever able, we will be out of the city with enough land and dogs and electronic surveillance that any sort of home invasion will be much less probable than the already low probability that it is now. Anyone that might scope out my house knows I have German Shepherds. I walk them and visit with neighbors all the time. That alone, I'm hoping, is enough of a deterrent for anyone watching.

sugar land dave wrote:My concern with the these "Justices" in Indiana is that besides shooting down the 4th amendment, they've give B & E criminals a new tool. Here in Houston we've had some instances of BG's kicking down the door dressed in jackets imprinted with 'POLICE" in bold letters. They screamed "police, police!" as they kicked in the doors. Then they tied people up and robbed them.

Now that's scary.

I hope it doesn't happen to anyone in Houston, but I hope it stays in Houston.

This feels very "gruen politzi"....

With any luck, this case will make its way into the federal court system and run into a panel of judges that has read the Bill of Rights.

Back in the not-so-old days of Texas law, it was legal to use force, up to and including lethal force, to resist an unlawful arrest. Of course, a person who actually killed a cop had one heck of a burden of proof requirement to show his actions were justified; losing could mean a date with Old Sparky. The Legislature decided that it was in the best interests of all parties involved that everyone had to submit to an arrest, even if it was illegal. Once again, the theory was that a person subjected to an unlawful arrest had recourse through the courts.

If courts and lawmakers want to require victims of unlawful arrest to wait for justice, they need to make sure that justice can be done and that offenders can be penalized. I am not sure how that could be done; grand juries are notorious for their reluctance to return a true bill against a cop and government agencies can invoke sovereign immunity.

As TexasBill mentioned, Texas law already states just what those Indiana judges ruled:

PC §9.31(b) wrote:(b) The use of force against another is not justified:
...
(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);
...

and

PC §9.31(c) wrote:(c) The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.

So even if a search is unlawful, one cannot use force to resist it.
I suspect such a provision is based on the premise that the homeowner (in this case) cannot rule the search unlawful; only a court can do that.
In this particular case, LE was called for a domestic disturbance. When they arrive, the husband insists that there is nothing going on and they are not needed. Surely it is standard to verify that with the other party (possible victim), as I'm sure our LE friends can clarify. If LE is being denied access to that other party, that could be probable cause to search for a victim.

MasterOfNone wrote:As TexasBill mentioned, Texas law already states just what those Indiana judges ruled:

PC §9.31(b) wrote:(b) The use of force against another is not justified:
...
(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);
...

and

PC §9.31(c) wrote:(c) The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.

So even if a search is unlawful, one cannot use force to resist it.

Is refusing to move or open the door "force"? I dont' think so. If they move you or break down the door is it now "greater force than necessary"? Yeah I think so.

Will you survive? I dont' know. Definitely at least going to get a ride, probably in an ambulance first then to jail. Worth it? Your call.

Bullwhip wrote:Is refusing to move or open the door "force"? I dont' think so. If they move you or break down the door is it now "greater force than necessary"? Yeah I think so.

Will you survive? I dont' know. Definitely at least going to get a ride, probably in an ambulance first then to jail. Worth it? Your call.

If you are physically blocking entry, then moving you becomes necessary to conduct the search.

MasterOfNone wrote:

Bullwhip wrote:Is refusing to move or open the door "force"? I dont' think so. If they move you or break down the door is it now "greater force than necessary"? Yeah I think so.

Will you survive? I dont' know. Definitely at least going to get a ride, probably in an ambulance first then to jail. Worth it? Your call.

If you are physically blocking entry, then moving you becomes necessary to conduct the search.

Does it become legal to move you just because it's "necessary"?

http://supreme.justia.com/us/177/529/case.html" onclick="window.open(this.href);return false;

Bullwhip wrote:

MasterOfNone wrote:

Bullwhip wrote:Is refusing to move or open the door "force"? I dont' think so. If they move you or break down the door is it now "greater force than necessary"? Yeah I think so.

Will you survive? I dont' know. Definitely at least going to get a ride, probably in an ambulance first then to jail. Worth it? Your call.

If you are physically blocking entry, then moving you becomes necessary to conduct the search.

Does it become legal to move you just because it's "necessary"?

http://supreme.justia.com/us/177/529/case.html" onclick="window.open(this.href);return false;

Unless I'm missing something in the case you linked, the court rules that the arrestee should get a new trial and be charged with manslaughter instead of murder.
Nonetheless, the Texas law specifically says that you cannot resist even if the search is illegal.