I’d be a lot less upset about this if Citizens could successfully have police criminally prosecuted for criminal trespass.

One of the many flaws in this very strange Indiana Supreme Court opinion is the assumption that there are viable civil remedies available post facto for the homeowner whose rights are violated. This is simply not the case as a matter of law or practice. As a matter of law, the ever-increasing ambit of qualified immunity sharply limits any possible recovery by the homeowner; and as a matter of practice, the costs of litigating would be prohibitive in most cases.

Even more remarkably, the Court claimed that the exclusionary rule provides protection to homeowners. Anyone with even a passing familiarity with modern exclusionary rule jurisprudence would know this is absurd. The exclusionary rule nowadays has little practical weight, its exceptions overwhelm its nominal force, and judges in practice rarely even apply it.

Mannie 05.15.11 at 1:36 pm
I’d be a lot less upset about this if Citizens could successfully have police criminally prosecuted for criminal trespass.
One of the many flaws in this very strange Indiana Supreme Court opinion is the assumption that there are viable civil remedies available post facto for the homeowner whose rights are violated. This is simply not the case as a matter of law or practice. As a matter of law, the ever-increasing ambit of qualified immunity sharply limits any possible recovery by the homeowner; and as a matter of practice, the costs of litigating would be prohibitive in most cases.

Even more remarkably, the Court claimed that the exclusionary rule provides protection to homeowners. Anyone with even a passing familiarity with modern exclusionary rule jurisprudence would know this is absurd. The exclusionary rule nowadays has little practical weight, its exceptions overwhelm its nominal force, and judges in practice rarely even apply it.

No, that is not what the ruling says. Read the ruling if you’re unclear.

Even the Court conceded that prior to its decision, there was a common law right to resist. Whether the Court was correct or not in removing that right, shouldn’t the defendant be judged according to the common law in effect at the time of his resistance?

But the truth of the matter is that the homeowner’s “remedy” would be to file a civil suit against the police, which will inevitably get dismissed on qualified immunity grounds.