Indiana legalizes shooting cops

drunkmonkey

From RT:

"Hold onto your holsters, folks: shooting a cop dead is now legal in the state of Indiana.

Governor Mitch Daniels, a Republican, has authorized changes to a 2006 legislation that legalizes the use of deadly force on a public servant — including an officer of the law — in cases of “unlawful intrusion.” Proponents of both the Second and Fourth Amendments — those that allow for the ownership of firearms and the security against unlawful searches, respectively — are celebrating the update by saying it ensures that residents are protected from authorities that abuse the powers of the badge"

Source

Does the law have any protection here for homeowners and does the law distinguish between the ordinary man in the street and a Garda when it come to "intrusion"?

Don't worry I don't own a gun and I don't know anyone that wants to shoot cops. Just curious how this would play out here and what rights I have to defend my property & myself.

ResearchWill

drunkmonkey wrote: »

From RT:

"Hold onto your holsters, folks: shooting a cop dead is now legal in the state of Indiana.

Governor Mitch Daniels, a Republican, has authorized changes to a 2006 legislation that legalizes the use of deadly force on a public servant — including an officer of the law — in cases of “unlawful intrusion.” Proponents of both the Second and Fourth Amendments — those that allow for the ownership of firearms and the security against unlawful searches, respectively — are celebrating the update by saying it ensures that residents are protected from authorities that abuse the powers of the badge"

Source

Does the law have any protection here for homeowners and does the law distinguish between the ordinary man in the street and a Garda when it come to "intrusion"?

Don't worry I don't own a gun and I don't know anyone that wants to shoot cops. Just curious how this would play out here and what rights I have to defend my property & myself.

http://www.irishstatutebook.ie/2011/en/act/pub/0035/sec0002.html#sec2

Subsection 2 is the important bit

2.— (1) Notwithstanding the generality of any other enactment or rule of law and subject to subsections (2) and (3), it shall not be an offence for a person who is in his or her dwelling, or for a person who is a lawful occupant in a dwelling, to use force against another person or the property of another person where—
(a) he or she believes the other person has entered or is entering the dwelling as a trespasser for the purpose of committing a criminal act, and
(b) the force used is only such as is reasonable in the circumstances as he or she believes them to be—
(i) to protect himself or herself or another person present in the dwelling from injury, assault, detention or death caused by a criminal act,
(ii) to protect his or her property or the property of another person from appropriation, destruction or damage caused by a criminal act, or
(iii) to prevent the commission of a crime or to effect, or assist in effecting, a lawful arrest.
(2) Subsection (1) shall not apply where the person uses force against—
(a) a member of the Garda Síochána acting in the course of his or her duty,
(b) a person assisting a member of the Garda Síochána acting in the course of his or her duty, or
(c) a person lawfully performing a function authorised by or under any enactment.
(3) Subsection (1) shall not apply where the person using the force engages in conduct or causes a state of affairs for the purpose of using that force to resist or terminate an act of another person acting in response to that conduct or state of affairs, but subsection (1) may apply, if the occasion for the use of force arises only because the person using the force concerned does something he or she may lawfully do, knowing that such an occasion will arise

hullaballoo

What about a member of AGS acting outside of his/her powers?


Fair game, imo. (Obviously, subject to the provisions of the NFOAPA and the above restatement.)

ResearchWill

hullaballoo wrote: »

What about a member of AGS acting outside of his/her powers?


Fair game, imo. (Obviously, subject to the provisions of the NFOAPA and the above restatement.)

The Act is clear if he is on Duty then the defence not available. If you mean outside of his powers not on duty then the defence may apply, if on the other hand you mean outside his powers but on duty that would not be a case I would like to run.

hullaballoo

ResearchWill wrote: »

The Act is clear if he is on Duty then the defence not available.

There is a marked difference between being on duty and "acting in the course of his or her duty". Say, for example, a member acts against the constitution by breaking into my dwelling followed by spraying me with pepper spray without having any reason; it's not going to make a difference that he's on duty. I have a right to protect myself and my home against that sort of behaviour. AGS do not and cannot have carte blanche to behave as they like.

If you mean outside of his powers not on duty then the defence may apply, if on the other hand you mean outside his powers but on duty that would not be a case I would like to run.

Why not? Again, AGS cannot just do what they want unchallenged and rely on the fact that they are in uniform to justify it.

SB2013

hullaballoo wrote: »

There is a marked difference between being on duty and "acting in the course of his or her duty". Say, for example, a member acts against the constitution by breaking into my dwelling followed by spraying me with pepper spray without having any reason; it's not going to make a difference that he's on duty. I have a right to protect myself and my home against that sort of behaviour. AGS do not and cannot have carte blanche to behave as they like.


Why not? Again, AGS cannot just do what they want unchallenged and rely on the fact that they are in uniform to justify it.

So if a Garda entered your home on a warrant and you discovered a mistake in the warrant making it invalid you think he is fair game?

ResearchWill

hullaballoo wrote: »

There is a marked difference between being on duty and "acting in the course of his or her duty". Say, for example, a member acts against the constitution by breaking into my dwelling followed by spraying me with pepper spray without having any reason; it's not going to make a difference that he's on duty. I have a right to protect myself and my home against that sort of behaviour. AGS do not and cannot have carte blanche to behave as they like.


Why not? Again, AGS cannot just do what they want unchallenged and rely on the fact that they are in uniform to justify it.

The reason unless there is concrete evidence that the member was acting outside the course f his duty it will be a hard case. It will be presumed that a uniformed member on duty was acting in the course of his duty. I personally would not like to be standing over a member if AGS dead and me holding the smoking gun and have my future decided on if he was acting in the course of his duty or not.

BattleCorp

ResearchWill wrote: »

The reason unless there is concrete evidence that the member was acting outside the course f his duty it will be a hard case. It will be presumed that a uniformed member on duty was acting in the course of his duty. I personally would not like to be standing over a member if AGS dead and me holding the smoking gun and have my future decided on if he was acting in the course of his duty or not.

Stuff your jewellery into his pockets before CSI arrive. ;););):D

ResearchWill

BattleCorp wrote: »

Stuff your jewellery into his pockets before CSI arrive. ;););):D

Don't forget to put his prints on them first.

hullaballoo

SB2013 wrote: »

So if a Garda entered your home on a warrant and you discovered a mistake in the warrant making it invalid you think he is fair game?

No. That's not remotely suggested by my post.

ResearchWill wrote: »

The reason unless there is concrete evidence that the member was acting outside the course f his duty it will be a hard case. It will be presumed that a uniformed member on duty was acting in the course of his duty. I personally would not like to be standing over a member if AGS dead and me holding the smoking gun and have my future decided on if he was acting in the course of his duty or not.

I'm not sure what makes you think I shot the Garda in my example! I mean that I can use reasonable force, as I could with any other intruder. I'm also presuming that there is no reason for the intrusion, such as suspicion of a crime taking place etc.

My point is in response to the OP asking what distinction is there in law between the ordinary man and a member of AGS when it comes to unlawful intrusion. My view is that there is no distinction on the basis of the NFOAPAs (and yes, I'm brushing aside the practicalities/reality of the scenario.)

ResearchWill

hullaballoo wrote: »

No. That's not remotely suggested by my post.


I'm not sure what makes you think I shot the Garda in my example! I mean that I can use reasonable force, as I could with any other intruder. I'm also presuming that there is no reason for the intrusion, such as suspicion of a crime taking place etc.

My point is in response to the OP asking what distinction is there in law between the ordinary man and a member of AGS when it comes to unlawful intrusion. My view is that there is no distinction on the basis of the NFOAPAs (and yes, I'm brushing aside the practicalities/reality of the scenario.)

I never said you shot the Garda I said if I shoot the Garda as an example. I do agree if it can be shown that the member was neither on duty or acting in the course of his duty and is in a persons dwelling then the defence arises. If on the other hand the member was acting in the course if his duty then no defence under the act, that of course does not mean a non statutory defence can't be run.

The defence mentions nothing about unlawful entry only in the course of duty, a member may unlawfully enter the property (wrong address etc.), but he may still be acting in the course of his duty.

SB2013

hullaballoo wrote: »

No. That's not remotely suggested by my post.

But he is in your house unlawfully (invalid warrant) in the course of his duty (search a property). It's exactly what you suggested.

Victor

It would seem to be moving it out of the category of being a strict liability offence.

Other defences aside (over-zealous Garda beating someone who is in the throes of an epileptic fit or some other medical situation), potentially it is then down to whether the Garda is acting in good faith.

A defective warrant might be one thing, a falsified warrant or other conspiracy to commit an offence by a garda or gardai would likely mean that garda(í) could not claim the benefit of that section of the act. A garda acting in good faith, who has been deliberately misled by another garda ("of course we have a warrant") should be able to claim the benefit.

Would the gardaí need to declare they were gardaí? The problem being a 'no knock' forced entry.

hullaballoo

SB2013 wrote: »

But he is in your house unlawfully (invalid warrant) in the course of his duty (search a property). It's exactly what you suggested.

I said, amongst other things that go against your post, "without having any reason". That means the Garda didn't have any reason to break into my home or pepper spray me. I never said anything about a warrant or searching a property?

SB2013

Victor wrote: »

It would seem to be moving it out of the category of being a strict liability offence.

Other defences aside (over-zealous Garda beating someone who is in the throes of an epileptic fit or some other medical situation), potentially it is then down to whether the Garda is acting in good faith.

A defective warrant might be one thing, a falsified warrant or other conspiracy to commit an offence by a garda or gardai would likely mean that garda(í) could not claim the benefit of that section of the act. A garda acting in good faith, who has been deliberately misled by another garda ("of course we have a warrant") should be able to claim the benefit.

Would the gardaí need to declare they were gardaí? The problem being a 'no knock' forced entry.

Not really judgements that can be made on the spot are they?

hullaballoo wrote: »

I said, amongst other things that go against your post, "without having any reason". That means the Garda didn't have any reason to break into my home or pepper spray me. I never said anything about a warrant or searching a property?

If he didn't have a reason he wouldn't be there. I think you mean a lawful reason. How would you know if he had a lawful reason or not? Would you interrogate him before executing him or make a snap decision?

Grolschevik

SB2013 wrote: »

Not really judgements that can be made on the spot are they?



If he didn't have a reason he wouldn't be there. I think you mean a lawful reason. How would you know if he had a lawful reason or not? Would you interrogate him before executing him or make a snap decision?

How about: garda goes berserk/decides to act on petty grudge and kicks your door down and tries to pepper spray you, while in uniform and/or while on duty. No warrant, no reason.

I think hullaballoo's scenario was about this sort of scenario.

SB2013

Grolschevik wrote: »

How about: garda goes berserk/decides to act on petty grudge and kicks your door down and tries to pepper spray you, while in uniform and/or while on duty. No warrant, no reason.

I think hullaballoo's scenario was about this sort of scenario.

But how do you know he has no warrant?

Grolschevik

SB2013 wrote: »

But how do you know he has no warrant?

Because he's going all Jack Nicholson in The Shining on your door?

SB2013

Grolschevik wrote: »

Because he's going all Jack Nicholson in The Shining on your door?

That's allowed.

Grolschevik

SB2013 wrote: »

That's allowed.

Ok. Try this: imagine any scenario or set of behaviours by a garda that would lead you or a subsequent jury to believe beyond a reasonable doubt that the (on-duty) garda (unlawfully) wished to do you harm.

That's what hullaballoo was talking about, I think. And I also think you know that. I imagine any guard acting like The Shining scene while in the course of their duties wouldn't be long in getting disciplined.

amen

The Act is clear if he is on Duty then the defence not available

I though a Garda was always on duty ?

Victor

amen wrote: »

I though a Garda was always on duty ?

A garda is never not a garda, however, they are only on duty when they are at work for their allocated hours.

On rare occasions, they can call in and be put on duty, e.g. if they happen to witness a serious crime.

hullaballoo

Here we go again. The Act refers to members acting in the course of their duties and this has nothing to do with whether they are on the roster at the time or otherwise.

For example, I could be an employee in Dunne's Stores doing a 8-5 shift. If at some point, I punch a customer for no reason whatsoever, I am acting outside of my duties as an employee of Dunne's Stores. I'm in uniform and I'm on the roster but I'm not performing the duties of an employee.

The exact same principle applies to a member of AGS. They are only permitted to do limited things in the course of their duties, by the constitution, by statute and under common law. Once they go beyond their permissions, they are acting outside of their duties and are governed by the same laws as every other person.

The fact that they are slow to accept that fact (see SB2013's posts) does not change matters. Of course, as people have pointed out, there are evidential issues around showing a Garda was acting outside of his or her duties. That's why in my shining example, the Garda had simply gone off the rails and smashed my door in without reason before assaulting me, again without reason.

In reality, the Garda would have had a valid warrant and I would have fallen at an awkward angle, causing the securely fastened canister of pepper spray to be discharged in my face. I might also have tripped down the stairs of my bungalow, resulting in two black eyes and cracked ribs, but no one can say for sure because it happened very quickly and I was obviously so threatening that it caused alarm to all members present.

SB2013

Grolschevik wrote: »

Ok. Try this: imagine any scenario or set of behaviours by a garda that would lead you or a subsequent jury to believe beyond a reasonable doubt that the (on-duty) garda (unlawfully) wished to do you harm.

That's what hullaballoo was talking about, I think. And I also think you know that. I imagine any guard acting like The Shining scene while in the course of their duties wouldn't be long in getting disciplined.

My point is that there are occasions when forced entry is used to execute a warrant for certain reasons.

hullaballoo wrote: »

The exact same principle applies to a member of AGS. They are only permitted to do limited things in the course of their duties, by the constitution, by statute and under common law. Once they go beyond their permissions, they are acting outside of their duties and are governed by the same laws as every other person.

You are moving the goalposts now. A person can be acting within their duty and unlawfully. Untested laws are open to interpretation. A seemingly legitimate warrant could be challenged and found to be invalid after a legal challenge. A seemingly legitimate arrest can be deemed to be unlawful at a later date. That does not mean the Garda involved was acting outside of their duties.

hullaballoo wrote: »

The fact that they are slow to accept that fact (see SB2013's posts) does not change matters. Of course, as people have pointed out, there are evidential issues around showing a Garda was acting outside of his or her duties. That's why in my shining example, the Garda had simply gone off the rails and smashed my door in without reason before assaulting me, again without reason.

I'm not slow to accept anything. My point is that there is no way you can tell at the time that a Garda is acting outside of his duties because the nature of Garda powers are unlawful but for the fact they are Gardaí. If you cannot be sure at the time they are acting outside of their powers then how can you later rely on that as a defence? You would have to rely on facts established at a later time to justify previous action.

hullaballoo wrote: »

In reality, the Garda would have had a valid warrant and I would have fallen at an awkward angle, causing the securely fastened canister of pepper spray to be discharged in my face. I might also have tripped down the stairs of my bungalow, resulting in two black eyes and cracked ribs, but no one can say for sure because it happened very quickly and I was obviously so threatening that it caused alarm to all members present.

What is this nonsense?