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Originally Posted by Jinn
It's not safe to assume because of how you're framing the question.
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not safe for you, because it's a cut and dry answer. You either DO or DON'T support the courts determining what rights YOU have. The framers did NOT give courts that authority, why should you?
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Originally Posted by Jinn
To the extent that you've said "common law" here, I presumed you understood what it meant. Your usage here and in previous posts in this thread seems to reveal a misunderstanding.
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unless you wish to redefine fundamental rights and common law rights.
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Originally Posted by Jinn
As opposed to statutory law and regulatory law, case law and common law are laws and interpretations of statutory and regulatory laws which regulate our society and are inextricably TIED to our social policy and evolve with social needs. Saying that the "right" to "reasonably resist" is a "clearly established common law right since 1215" means you're ignoring every social change and judicial ruling in the intervening 800 years.
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this is the fallibility of your living constitution theory. This country wasn't founded upon a central government determining what rights you had available to you at certain times in it's history. They experienced that firsthand from the crown and CHOSE to deny the government that power with the bill of rights.
[quote=Jinn;2901410]I'll once again quote the majority opinion, which laid this out for you:
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In the 1920s, legal scholarship began criticizing the right as valuing individual liberty over physical security of the officers. Hemmens & Levin, supra, at 18. One scholar noted that the common-law right came from a time where ―resistance to an arrest by a peace officer did not involve the serious dangers it does today.‖ Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942). The Model Penal Code eliminated the right on two grounds: ―(1) the development of alternate remedies for an aggrieved arrestee, and (2) the use of force by the arrestee was likely to result in greater injury to the person without preventing the arrest. Hemmens & Levin, supra, at 23. In response to this criticism, a majority of states have abolished the right via statutes in the 1940s and judicial opinions in the 1960s. Id. at 24–25
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The above is clearly an example of the worst kind of judicial tyranny. It gives credence to the idea that people sitting on a bench talking law knows better than you in how life should be.
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Originally Posted by Jinn
But because case and common law *IS* social policy and inextricable from evolving social needs, of course I support the ability of a judicial branch which performs its function, interpreting law in a contemporary framework. I would not want our laws evaluated as contemporary for 1700 - I want them analyzed in the framework of modern America of the 21st century. In fact they must be, and this concept is supported by anyone who believes even vaguely in a balanced government with three divisions and a judicial system of evaluating the executive and legislative.
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the fatal flaw in this belief is that the government did not create us. we created the government. I need you to show me WHERE the creators of this government gave them the power to determine our future in the constitution.
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Originally Posted by Jinn
But you framed the question in such a way as to imply that I support a judicial system which removes immutable protections from the government as established in the Constitution. As I'm sure has been noted before, the Constitution limits the power of the government, rather than "granting" rights. In the case of the Fourth Amendment, it limits only the government from "unreasonable" search and seizure, and the ability to execute same without warrants. Removing the ability to (in most cases) violently resist an attempted police arrest does not undermine the protections of the 4th Amendment.
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so you're redefining 'unreasonable' how? because what you're saying is that there is NO unreasonable search and seizure now, and if there is, the courts MIGHT correct it and reimburse you.
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Originally Posted by Jinn
I am far more concerned about case and administrative law that removes the requirement for a warrant, such as warrantless wiretaps, warrantless GPS tracking and warrantless ISP access requests than I am about a precedent regarding your ability to resist an arrest you feel in the heat of the moment is "unlawful".
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this is more than the right to resist in unlawful arrest. this decision REMOVES/NEGATES/INVALIDATES a right that you once had in favor of public policy. what other rights will you be comfortable having removed in favor of public policy? what right do you now have to privacy in the sanctity of your own home? you have NONE, if you live in Indianapolis anyway, and there's no telling how many other state supreme courts will rule such now.
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Originally Posted by Jinn
A fine (and final) point also raised in the majority opinion is that there is a balance of rights here - certainly, the right of a citizen to be protected from police overreach is there, but what of the right of a police officer to their physical security?
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so the rights of police officers override your rights to anything. this is what we call authoritarianism, or pro police state ideology.
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Originally Posted by Jinn
I cannot condone resistance to arrest (lawful or otherwise) in an environment when so many options for legislative and administrative redress exist, and in an environment where strong law exists to protect the detained, arrested and incarcerated.
From a pragmatic standpoint, as well; you will fare better accepting the unlawful arrest and suing the police department than you will attacking the officer. There's no way around that obvious fact.
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do you have any stats or examples of the courts ACTIVELY holding police officers accountable for violating the rights of citizens? I'd love to see them compared to the number of times a court gives qualified immunity to police officers following policy, or good faith exceptions because they 'believed' they were acting with exigent circumstances. How about absolute immunity for prosecutors that withhold exculpatory evidence for defendants that did not commit a crime, but go to prison anyway? How about judges who rule that you have no right to be free from being framed by the government? or no right NOT to be executed by the government off of false testimony that prosecutors KNEW to be false?