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Mitch Daniels appointee: A judicial activist against the Bill of Rights

By Mark J. Fitzgibbons -- 5/26/11

From the well-known invasive TSA “pat downs” to the less-publicized use of government searches to harm free enterprise, conservatives are increasingly coming to recognize the importance of the Fourth Amendment: "The right of the people against unreasonable searches and seizures."

A recent decision by the Indiana Supreme Court, however, puts our homes and families in jeopardy.

Indiana Supreme Court Justice Steven David, a Gov. Mitch Daniels appointee, wrote a remarkably disturbing opinion that eviscerates the Fourth Amendment protection against unlawful police searches of homes – every man’s “castle.”

Justice David wrote, “there is no right to reasonably resist unlawful entry [to one’s home] by police officers.”  You read that right:  "Reasonably."

He went on:  “We believe . . . that a right to resist an unlawful entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence.”

The homeowner was convicted of misdemeanor battery on a law enforcement officer, resisting law enforcement and disorderly conduct after a police officer entered his home without a warrant.

It is not that the homeowner acted in a saintly manner.  It is, however, that Justice David engaged in judicial activism and created a constitutional doctrine beyond what was necessary to resolve this case – one that works against centuries of common law protections of one’s home plus the more stringent provisions of the Fourth Amendment added to buttress those common law protections.

The Fourth Amendment was written in part because Englishmen and colonists were subject to sometimes-brutal entries into their homes by law enforcement officials, who at times even sexually assaulted the female residents of the homes.

When such entries were unjustifiable or conduct was brutal, the homeowner’s only resort was to resist -- physically.  After all, whom were homeowners going to call when law enforcement went rogue?

I have many relatives who are police officers, and each night I pray for the safety of all police.  The Fourth Amendment protects against rogue law enforcement, and good law enforcement officials understand that.

Justice David’s opinion is an example of judicial activism, but instead of creating new rights, it is judicial activism for a stronger police state.  A stronger police state is the vanguard of big government.

In 1761, James Otis argued against unreasonable searches of businesses under the British Writs of Assistance.  That case, The Paxton’s Case, was later credited by John Adams as birthing the “Child of Independence.”

Big-government judges are a danger to freedom.  We need politicians who will appoint good judges.  Constitutional conservatives would be wise to focus more attention on the Fourth Amendment in the judicial selection process.

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