Saturday, November 19, 2011

Half of the Second and the Third Pages of the Indiana Supreme Court's Decision Following the Rehearing in Barnes v. State


This is from the Indiana Supreme Court's second Barnes decision, upon rehearing.  It was jarring to me, in particular, because I respect this Court -- particularly what Chief Justice Shepard has done in drawing attention back to Indiana's state Constitution, and in the work that the Court has done to encourage civic education.  Nevertheless....


Pay attention to the parts highlighted in red.  Do you see what they did, there?:

"The legislature has declared it to be a Class A misdemeanor when one commits battery on a law enforcement officer 'while the officer is engaged in the execution of the officer’s official duty.'  Ind. Code § 35-42-2-1(a)(1)(B) (2008).1

"Barnes’s demand for this instruction has rested solely on the common law rule that 'a man’s home is his castle,' which gives him the right to reasonably resist unlawful entry.  The amicus legislators additionally cite a statute not pleaded by Barnes which creates a defense to crimes of violence, authorizing a person to use 'reasonable force, including deadly force, against another person . . . if the person reasonably believes that the force is necessary to prevent or terminate' the unlawful entry of his dwelling or occupied motor vehicle. I.C. § 35-41-3-2(b).  As will appear below, the Attorney General’s analysis of this statute speaks to the same point raised by the amicus.

"The Attorney General’s response to Barnes’s petition for rehearing urges that this right should remain intact but likewise urges that 'reasonable resistance does not include battery or other violent acts against law enforcement.'

"We deem the Attorney General to have restated the central thesis of our resolution of this case.  As he says,

Tense and even dangerous police-citizen encounters fit no limited pattern; reactions and decisions are made in the split second, and each incident is unique.  The hindsight, after-the-fact evaluation by the judiciary is inherently a case-by-case process, but our courts have shown themselves equal to the task as they strike the correct balance between safety and privacy.

"The Attorney General is correct that making such decisions is inherently a matter based on fact, but whether a criminal defendant may be excused from a crime created by statute is a matter of general law.  Consistent with his earlier point, we hold that the Castle Doctrine is not a defense to the crime of battery or other violent acts on a police officer.


"Our holding does no more than bring Indiana common law in stride with jurisdictions that value promoting safety in situations where police and homeowners interact.  Importantly, we observe the actions in this case were 'appropriate to a rapidly unfolding situation in the immediate aftermath of a reported' domestic violence situation.  Commonwealth v. Gomes, 795 N.E.2d 1217, 1222 (Mass. App. Ct. 2003) (refusing to grant a jury instruction on the right to forcibly resist an unlawful police entry).

"We also emphasize that this holding does not alter, indeed says nothing, about the statutory and constitutional boundaries of legal entry into the home or any other place.  Our earlier opinion was not intended to, and did not, change that existing law about the right of the people to be secure in their persons, houses, and papers against unreasonable searches and seizures.  U.S. Const. amend. IV; Ind. Const. art. 1, § 11.

"This also reflects the basis for our holding about defenses available to criminal defendants charged with violence against police officers: the ruling is statutory and not constitutional.  The General Assembly can and does create statutory defenses to the offenses it criminalizes, and the crime of battery against a police officer stands on no different ground.  What the statutory defenses should be, if any, is in its hands."

The answer to the question is, "They pretended to legislate."

Friday, November 18, 2011

A Draft Of Some Thoughts On The Right To Self-Defense

The reason-based, fundamental justification for self-defense is difficult to explain, because it is so obvious, and there is not much to explain about it.  Defense is the justification for just uses of force.  Other justifications, which arguably are not defensive, are linked to defense, as enforcing a positive obligation that, if not carried out, would be an injustice, just as the offensive use of force against another person would be.  However specious the assertion of those positive obligations may, at times, be (and as much as some people might disagree with my use of the word "defense" in reference to any positive obligation), there is, regardless, no question that a valid obligation of this type, positive or negative, may be enforced (that is the nature of this type of obligation).  It cannot be objected that it involves force, where it negates aggressive (and unjust) force, or prevents an equivalent injustice from being inflicted by omission.  It preserves or otherwise vindicates freedom and justice and true peace (rather than a false peace where the violence is threatened and inchoate, but present through its consequences).  By definition, what it preserves or revives is just, and what it destroys is unjust.

Where it may appear to have other consequences, such as an increased chance of injury to the wrongdoer or the defender, or to third parties who are innocent as well, this is, of course, the fault of the wrongdoer, even though the act of defense does contribute to turning that possibility into a reality.  The ethics of this situation are as follows: First, the wrongdoer puts himself at risk by justifying action against him and by creating the situation where another person's vindication of his rights could result in harm to the wrongdoer.  So far as the wrongdoer contributes to that situation, he consents by his actions to his own injury, and to the extent that injury is inflicted upon him by the defender (who must use reasonable force), it is simply justified.

Second, the defender may bring injury upon himself by defending against an injustice.  So far as it concerns his own contribution to this injury, the defender consents to it, again, by his actions, and has done nothing wrong.  So far as the wrongdoer contributes to the situation that results in injury to the defender, the wrongdoer is, of course, at fault.

Third, when innocent third parties may be harmed, this possibility impacts the reasonableness of various acts that the defender could take in his defense.  Additionally, here, there is a collision of rights of the innocent which makes it impossible to judge as a matter of justice (though good sense and morality can supply a rule of action for the case).  Many of the ordinary things that people do pose some risk to other people, but the wrongdoer's implicit consent to injury does not justify any amount of force by the defender against innocent people.  Yet, this does not affect the fitness of the wrongdoer's conduct as an object of the defender's resistance -- the defender has as good a right to prevent or end the wrong against him as any innocent bystander has to not be affected by such an affray.  However, despite  the fact that both the defender and the bystander has a right to not be wronged, and even though those rights may conflict with each other, in this situation, I see two rules which should govern the actions of the defender, in this situation.  First, as indicated above, the possibility that force will affect the rights of innocent people affects the reasonability of the various actions which the defender might take as force against the wrongdoer.  Just as the defender is obligated to avoid using more force than reasonably seems to be necessary, against the wrongdoer, in order to defend his rights -- this restriction being for the benefit of the wrongdoer, who is a person, after all, and may not have invited or justified deadly force against him, depending on what he did -- the reasonability of whatever the defender might be justified in bringing against the defender clearly must be affected by the likelihood that it will somehow affect the rights of others, which the defender has no right to do, and therefore must account for, or be held accountable for.  Second, good sense and morality, as I wrote, also offer something here, because we ought to treat our fellow people equitably, and ideally, to value their rights as our own.  For this reason, if not for the first reason, the defender probably ought to avoid firing a gun at a wrongdoer when he suspects that innocent people may well be hit instead (or as well), unless the wrongdoer poses a credible, immediate threat to someone's life (or possibly health; pure reason is difficult to translate entirely into positive rules, and, beyond a certain point, it is unreasonable to hold people to a standard of pure reason, especially when they are being threatened).

The principles of these simple scenarios can be applied to more complicated or unusual ones, as, for example, when a police officer with a lawful warrant enters a home, and an occupant mistakes him for a criminal intruder.  (He ought to be able to use force that is reasonable in its direction, degree, and manner, based on what he knows or should know, with the intention of preventing or terminating an unjust use of force.)

However, aside from its possible impact on third parties, and stating again the qualification that only "reasonable" force is defensive -- which ideas both work to form the contours of the very concept of self-defense -- I can imagine no justification for stripping away this fundamental right.

It is not reason alone that guarantees the right to self-defense, though.  What was generally known as the "first law of nature" could hardly have been more firmly established than it is.


http://www.ordainandestablish.com/2011/06/about-indiana-supreme-courts-decision.html
http://www.ordainandestablish.com/2011/06/but-who-will-judge.html
http://www.ordainandestablish.com/2011/06/also-concerning-self-defense.html
http://www.ordainandestablish.com/2011/06/first-principles.html
http://www.ordainandestablish.com/2011/06/blackstone-on-right-of-self-defense-or.html
http://www.ordainandestablish.com/2011/06/what-john-adams-wrote-in-margin-quoting.html
http://www.ordainandestablish.com/2011/06/odgers-on-common-law-self-defense.html
http://www.ordainandestablish.com/2011/06/from-kents-commentaries-self-defense.html
http://www.ordainandestablish.com/2011/06/from-esteemed-pufendorf-self-defense.html
http://www.ordainandestablish.com/2011/06/from-cooley-on-torts-right-to-self.html
http://www.ordainandestablish.com/2011/06/cooleys-treatise-on-constitutional.html
http://www.ordainandestablish.com/2011/06/more-from-cooley-concerning-warrants.html
http://www.ordainandestablish.com/2011/06/cooley-on-general-principles-of.html
http://www.ordainandestablish.com/2011/09/primary-law-of-nature.html
http://www.ordainandestablish.com/2011/09/defending-oneself.html
http://www.ordainandestablish.com/2011/10/herbert-broom-on-self-defense.html
http://www.ordainandestablish.com/2011/11/even-thomas-hobbes-on-right-to-self.html
http://www.ordainandestablish.com/2011/11/john-adams-on-right-to-self-defense.html
http://www.ordainandestablish.com/2011/11/st-george-tucker-on-right-of-self.html


Wednesday, November 16, 2011

The Reading List

Once I realized what a wealth of information had become widely available as old books were put online, I began to download, collect, organize, and process the best of them, producing notes which contain what I believe to be the very best passages from those books.  The 752 pages of notes will provide me with plenty of material to distribute through Ordain And Establish in the coming years, but because I thought that readers might benefit from reading many of these same books themselves, I gathered the following links to most of the most important books that I read and processed:


  1. The Pandects of Justinian, Volume I
  2. The Pandects of Justinian, Volume II
  3. Principles of Government: A Treatise on Free Institutions, by Nathaniel Chipman
  4. Speech of Hon. Daniel Chipman (1837), by Daniel Chipman
  5. The Law, by Frederic Bastiat
  6. A Manual of the General Principles of Law (1879), by M.E. Dunlap
  7. Observations on the Act of Parliament commonly called the Boston Port Bill (1774), by Josiah Quincy
  8. Principles of Natural and Politic Law (1763), Volume IVolume II, copies owned by John Adams, by Jean Jacques Burlamaqui
  9. Elements of the Common Lawes, by Francis Bacon
  10. Exemplum tractatus de fontibus juris, and other Latin pieces of Lord Bacon (Translated; 1823), by Francis Bacon
  11. Broom's Maxims
  12. Wharton's Maxims
  13. Second Treatise of Government, by John Locke
  14. Discourses Concerning Government, Volume IVolume II, copies owned by John Adams, by Algernon Sidney
  15. A Law Grammar, or Rudiments of the Law (1817) (1840), by Giles Jacob
  16. Principles of Government (1856), by William Smith O'Brien
  17. The Habeas Corpus Act, by the English Parliament
  18. Parliamentary Debates (read the history of the Petition of Right, 1628), by the English Parliament
  19. Journals of the Continental Congress (Volume V) (included in this list simply because it is fascinating; it includes the Declaration of Independence; however, I did not process the entire journal)
  20. Observations on the American Revolution, page 519 in the Pennsylvania Archives, Volume VII, by the Second Continental Congress (specifically, Gouverneur Morris)
  21. Common Sense, by Thomas Paine
  22. The Farmer's and Monitor's Letters to the Inhabitants of the British Colonies (1769)
  23. The Rights of the Colonists (1772), by Samuel Adams
  24. The Federalist, by Alexander Hamilton, James Madison, and John Jay
  25. Commentaries on the Laws of England, Volume IVolume IIVolume III, and Volume IV, by William Blackstone, copies owned by John Adams
  26. The Wealth of Nations, by Adam Smith, Volume IVolume II, copies owned by John Adams
  27. Acts of the First Congress of the United States of America, copy owned by John Adams
  28. A legal dictionary owned by John Adams
  29. The Way To Wealth, or Poor Richard's Almanac, compiled by Benjamin Franklin
  30. Select Works of Edmund Burke, Volume IVolume IIVolume III, by Edmund Burke
  31. Revised Laws of Indiana as of 1831
  32. Civil Code of the State of Louisiana
  33. "Life and Times of Frederick Douglass, written by himself," by Frederick Douglass
  34. Commentaries on Equity Jurisprudence, by Joseph Story
  35. Commentaries on the Constitution, Volume IVolume IIVolume III, by Joseph Story
  36. The Elements of Torts, by Thomas Cooley
  37. General Principles of Constitutional Law in the United States, by Thomas Cooley
  38. Constitutional Limitations, by Thomas Cooley
  39. Commentaries on American Law, Volume I, by James Kent
  40. Commentaries on American Law, Volume II, by James Kent
  41. The Law of Torts, by Francis Pollock
  42. Handbook of American Constitutional Law, by Henry Campbell Black


(I am aware that the Habeas Corpus Act and Samuel Adams' report on the Rights of the Colonists are not books, but I thought that they would be worth including, since I did "process" them.  Additionally, I did find Rights of the Colonists in a collection of the works of Samuel Adams, but I decided to link directly to that particular work at a different location, online.)

Tuesday, November 15, 2011

St. George Tucker on the Right of Self-Defense

"The right of self defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."

Monday, November 14, 2011

John Adams, on the Right to Self-defense

(Even) Thomas Hobbes, on the right to self-defense

"For men, when we make societies or commonwealths, we lay not down our right to kill, excepting in certain cases, as murder, theft or other offensive action; so that the right, which the commonwealth hath to put a man to death for crimes, is not created by the law, but remains from the first right of nature,which every man hath to preserve himself; for that the law doth not take the right away in the case of criminals, who were by the law excepted."

Friday, November 11, 2011

Edmund Burke, on Duty

“It is therefore our business carefully to cultivate in our minds, to rear to the most perfect vigour and maturity, every sort of generous, and honest feeling that belongs to our nature. To bring the dispositions that are lovely in private life into the service and conduct of the commonwealth; so to be patriots, as not to forget we are gentlemen. To cultivate friendships, and to incur enmities. To have both strong, but both selected: in the one, to be placable; in the other, immoveable. To model our principles to our duties and our situation. To be fully persuaded, that all virtue which is impracticable is spurious; and rather to run the risque of falling into faults in a course which leads us to act with effect and energy, than to loiter out our days without blame, and without use. Public life is a situation of power and energy; he trespasses against his duty who sleeps upon his watch, as well as he that goes over to the enemy.”

Edmund Burke, Explaining the Conservative Principle

By conservative, here, I do not necessarily mean political conservatism, even though political conservatism, in its ideal form, does keep this principle of conservatism.  Instead, I mean precisely what Burke describes in the quote below: a practice or tendency of recognizing, valuing, and securing hard-won gains as necessary reform is pursued.  The relevance of this to our Constitution is in the fact that this Constitution, and the law embedded in it, is itself a hard-won gain, which could not be surely or easily repeated, once it has been discarded.  This is why it is so important to preserve it, even as we reform the laws and government that have been constructed upon it.

"This policy appears to me to be the result of profound reflection; or rather the happy effect of following nature, which is wisdom without reflection, and above it.  A spirit of innovation is generally the result of a selfish temper and confined views.  People will not look forward to posterity, who never look backward to their ancestors.  Besides, the people of England well know, that the idea of inheritance furnishes a sure principle of conservation, and a sure principle of transmission; without at all excluding a principle of improvement.  It leaves acquisition free; but it secures what it acquires."

Thursday, November 10, 2011

Edmund Burke, Concerning Criminal Law

“A large and liberal construction in ascertaining offences, and a discretionary power in punishing them, is the idea of criminal equity; which is in truth a monster in Jurisprudence.”

Monday, November 7, 2011

Samuel Adams, 1768


“It is acknowledged to be an unalterable law in nature, that a man should have the free use and sole disposal of the fruit of his honest industry, subject to no controul. The equity of this principle seems to have been too obvious to be misunderstood by those who framed the constitution; into which it is ingrafted as an established law."

Sunday, November 6, 2011

From A Letter from Samuel Adams, December 20, 1765

“The Primary, absolute, natural Rights of Englishmen as frequently declared in Acts of Parliament from Magna Charta to this Day, are Personal Security, Personal Liberty, and Private Property, and to these Rights the Colonists are intitled by Charters, by Common Law and by Acts of Parliament.”

...

“The American Powers of Government are rather to be considered as Matters of Justice than Favor—with out them they cannot enjoy that Freedom, which, having never forfeited, no Power on Earth has any Right to deprive them of.”

Saturday, November 5, 2011

Jefferson, Concerning the General Welfare, From a Draft Declaration From 1825

"This assembly does further disavow and declare to be most false and unfounded, the doctrine that the compact, in authorizing its federal branch to lay and collect taxes, duties, imposts and excises to pay the debts and provide for the common defence and general welfare of the United States, has given them thereby a power to do whatever they may think, or pretend, would promote the general welfare, which construction would make that, of itself, a complete government, without limitation of powers; but that the plain sense and obvious meaning were, that they might levy the taxes necessary to provide for the general welfare, by the various acts of power therein specified and delegated to them, and by no others."

Thank you to the Avalon Project at Yale University for providing the text of this draft.

Friday, November 4, 2011

Story on the Fourth Amendment


“§ 1894. The next amendment is: ‘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 person or things to be seized.’

“§ 1895. This provision seems indispensable to the full enjoyment of the rights of personal security, personal liberty, and private property. It is little more than the affirmance of a great constitutional doctrine of the common law. And its introduction into the amendments was doubtless occasioned by the strong sensibility excited, both in England and America, upon the subject of general warrants almost upon the eve of the American Revolution. Although special warrants upon complaints under oath, stating the crime, and the party by name, against whom the accusation is made, are the only legal warrants, upon which an arrest can be made according to the law of England; yet a practice had obtained in the secretaries' office ever since the restoration, (grounded on some clauses in the acts for regulating the press,) of issuing general warrants to take up, without naming any persons in particular, the authors, printers, and publishers of such obscene, or seditious libels, as were particularly specified in the warrant. When these acts expired, in 1694, the same practice was continued in every reign, and under every administration, except the four last years of Queen Anne's reign, down to the year 1763. The general warrants, so issued, in general terms authorized the officers to apprehend all persons suspected, without naming, or describing any person in special. In the year 1763, the legality of these general warrants was brought before the King's Bench for solemn decision; and they were adjudged to be illegal, and void for uncertainty.”

Thursday, November 3, 2011

From Joseph Story's Commentaries on the Constitution -- A Reminder Concerning Powers Reserved To the States


“§ 626. The truth is, that the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them. They have just as much right, and no more, to prescribe new qualifications for a representative, as they have for a president. Each is an officer of the Union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states. It is no original prerogative of state power to appoint a representative, a senator, or president for the Union. Those officers owe their existence and functions to the united voice of the whole, not of a portion, of the people. Before a state can assert the right, it must show, that the constitution has delegated and recognised it. No state can say, that it has reserved, what it never possessed.”