Free Markets, Free People


Is A Man’s Home Still His Castle?

Originally posted at the Washington Examiner on August 28, 2010. Some edits have been made to the original article.

It’s an enduring doctrine in America that one’s home is off limits to prying eyes and ears, and can be defended to the death if necessary. It’s not strictly true, of course, and certain states have eroded the doctrine to a gossamer wisp of the core idea. Yet, we tend to operate on an almost instinctual presumption that, when we are on our own property, we are kings and queens of the castle.

Felicia Gibson clearly adhered to this principle, and it’s landed her in serious legal trouble (via Glenn Reynolds):

The resisting-arrest conviction last week of Felicia Gibson has left a lot of people wondering. Can a person be charged with resisting arrest while observing a traffic stop from his or her own front porch?

Salisbury Police Officer Mark Hunter thought so, and last week District Court Judge Beth Dixon agreed. Because Gibson did not at first comply when the officer told her and others to go inside, the judge found Gibson guilty of resisting, delaying or obstructing an officer.

Gibson was not the only bystander watching the action on the street. She was the only one holding up a cell-phone video camera. But court testimony never indicated that Hunter told her to stop the camera; he just told her to go inside.

Taking video of police stops is becoming more common with the ubiquity of cell-phone cameras and the like, and so is the backlash from law enforcement as has been amply covered by people like Glenn Reynolds (the famous Instapundit) and Radley Balko (from Reason Magazine). From the account given, it appears this why Ms. Gibson was arrested. What makes her case unique, however, is that she was on her own front porch when the encounter took place, and that she was taken into custody on a charge of “resisting arrest.”

Salisbury Police Chief Rorie Collins explained the North Carolina statute, under which Gibson was charged, as this:

“This crime is considered a Class 2 misdemeanor and involves:

“Any person who shall willfully and unlawfully resist, delay, or obstruct a public officer in discharging or attempting to discharge a duty of his office.

“Obviously, this charge is rather broad and can encompass many different types of actions that are designed to, or serves to hinder a law enforcement officer as he/she performs their duties.

“This charge is most commonly used in situations where a person who is being arrested refuses to cooperate and either passively or aggressively resists an arrest or tries to run away.

“Another very common situation in which this charge is used involves instances when an officer is conducting an investigation and the individuals with whom he/she is dealing provide a false identity when required to identify themselves.

“As you can imagine, there are also many other circumstances in which this charge would be appropriate.”

Chief Collins wouldn’t comment on the specifics of Gibson’s case, but did allow that, in general one does have the right to observe a police stop from one’s own property. He also seemed to suggest that a charge of resisting arrest may still be appropriate in a situation where bystanders refuse to obey police commands to exit the area for their own safety.

“However, just as with many other scenarios, it is important to remember that every situation is based upon its own merits/circumstances. There are some circumstances in which the police who have stopped the vehicle in front of your house may determine that it is in the interest of safety (the officer’s, yours or the individual stopped) to require that folks move. As with other circumstances, it is best advised that an individual merely obey by the officer’s commands.”

Perhaps on a public street the Chief might have a point, in that a colorable argument could be made that the police are charged with protecting the safety of the public highways and byways, even where the only danger is self-imposed.

But to arrest someone who is unmistakably on their own property, and doing nothing remotely illegal, is an abuse of power pure and simple. Even if it were true that Gibson was endangering herself by witnessing the traffic stop from the confines of her front porch, how could that possibly be construed as “resisting arrest” or “obstructing the police” without eviscerating everything that the concept of private property (not to mention plain old individual rights) stands for? Taking such a risk is not illegal. Doing it while occupying one’s homestead should be recognized as unassailably within one’s rights.

Since it appears that neither the police nor the district attorney’s office can be shamed into refraining from such power abuses, perhaps it will take a fat lawsuit for violations of Gibson’s (et al.) constitutional rights to get their attention.

The castle walls may be crumbling and decayed, but the invaders can be fought back and the walls rebuilt.

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23 Responses to Is A Man’s Home Still His Castle?

  • In purely technical legal terms…that case reeks to high heaven.
    A big, fat lawsuit sounds in order to me.

  • I wonder what the police would have done if she had said “Okay, I’ll go inside and play with my gun collection”.

  • I disagree.  It’s rare that a lawsuit affects an officer at all.  All to often the officer keeps their job with a mild reprimand and the taxpayers fund both the defense and the payments.  Fat lawsuits do nothing but harm the taxpayers.  Until the officers are held personally and criminally liable for their abuses, nothing will change.  A few weeks in federal ‘pound my *ss’ prison should correct their attitude.

    • Boy, I know a lot of LEOs that would take violent exception to that!  Most LEOs HAVE to carry insurance (which is pretty paltry) against a law suit.
      Your points are sound on the public paying the big price, but why is that a negative?  We allow this kind of thing, or we proscribe it.  This is NOT, IMNHO, an isolated instance of a rogue cop.  OBVIOUSLY there are supporting players at work here.  What about the DA (or equivalent) who prosecuted this?  What about the judge who made the judgment?  What about the local pols who permitted this to go forward without (apparent) objection.

      • Even worse, when a cop is under investigation, he/she often gets a free paid vacation and can even get a second cop job as a reward for malfeasance.
        None of this will ever stop until the police chiefs and prosecutors are held accountable when the cops who work for them break the law.

  • Although this is clearly a case of abuse, in a more broad way I can see that the law might be held constitutional.

    Imagine this scenario, A police officer knows that an armed perpetrator is loose in the area, He orders citizens to go into their house for safety. 

    Some dumbass goes off about his rights and makes a scene, this delays the policeman and reveals that he is in the area, so the bad guy gets away.

    Clearly this was not the situation, but I don’t see a problem in general with a law where an officer can tell you to get inside temporarily, for your own protection.

    • Clearly this was not the situation, but I don’t see a problem in general with a law where an officer can tell you to get inside temporarily, for your own protection.

      The problem is not with the law…as you note.
      The problem is with the abuse of the law.  As with all laws we can make a case for in SOME circumstance, there are clearly circumstances where the law can be abused.  We have mechanisms for sending the message to LEAs that they MAY NOT abuse the power given them…or the rights of those they claim to protect.
      This isn’t hard.

    • Sure, Kyle, and why we are at it, let’s make sure that nobody is ever hurt by their own actions by legislating anything that could hurt them. For instance, guns, motorcycles, sugar, fats, trampolines, football, ladders, observing an arrest in their front porch, and jarts (wait they already outlawed those). Government should not be passing laws that are designed to protect people from their own stupidity because not only will it infringe on general civil rights but also (SURPRISE!) they are always at some point abused by those delegated to enforce it. The officer should suggest they move inside for safety and that is all he should be required or allowed to do.  He should only be allowed to act when their is actual interference in their duties (ie shining a light in his eyes, pointing a gun, yelling things that could be distracting).

      • Grammatical correction “their is actual” is supposed to be “there is actual”. Had to correct it, it was bothering me.

      • Yeah, not so much. There are times when a gathering of spectators could put themselves or others at risk.  I don’t see anything wrong with such a law, and let’s not equate it to being a nanny state sort of thing, it is just being prudent.

        • Yes, but I think we can all agree that standing on your own front porch is not a “gathering” of any sort.

  • If I’m on public property and the LEO tells me to get inside for my own protection, that’s not a problem. If I then go onto my private property but sit on the porch, that my problem. If the barricaded sniper then shoots me, well that’s my problem as well. I suppose the counter-argument could be that once I’m injured, the LEOs might have to provide cover for any EMTs who show up.

    • Or, they could leave you there to bleed, if they had any conception of personal responsibility.  Not that I care for the idea of leaving anyone to die, mind you, but if they warn you, they shouldn’t have to do anything to help you.

      • And, I doubt a lot of cops would even bat an eye if they were given permission to leave people who ignored their warnings to suffer their fate.  The worst of them already do it to their victims, illegal aliens, petty criminals, or people unlucky enough to be with someone who “offends” the cop’s sense of superiority.
        But it would remove their excuse for arresting people who don’t heed their warnings (but otherwise aren’t hurting anyone else).  Can’t have that.

        • OK, you kind of left the rails a few posts back.  OK by me.
          This is simply nuts.  There are bad cops, as I know too well.  There are really good ones, too.  By-in-large, they are PEOPLE who try very hard to do an incredibly difficult job.  You are not better than they.

          • Unfortunately, the alleged “really good [cops]” are not doing their job to hold the bad ones accountable.  How can a person be a “good cop” if he/she covers for lawbreakers just because they wear the same uniform?  Sorry, I don’t consider such a person to be good.

            You are not better than they.

            I beg to differ.  I don’t dedicate my career to harassing people who haven’t done anything to hurt anyone else or covering up for rogues who treat civilians like second-class citizens.  Those facts alone make me better than most of the men and women in blue.
            Occasionally, there are honest police officers, but all too many times, they are ostracized, threatened, fired, or worse in retaliation for “ratting” on fellow officers.
            When there’s a murderer, rapist, burglar, or whatever, I appreciate when police do a good job to help the victims.  But they could do that without harassing people over vice offenses or acting like bullies.  It’s a damned shame.

          • Sounds like you have a personal problem with the law…which you have transferred to the LEO population in WAY too general a fashion.
            The word EXTREME comes to mind…

          • No, Rags, I don’t have a personal problem with LE.  I’ve had a few speeding tickets, but otherwise I’ve never been arrested, detained, or suspected of any wrongdoing.  I don’t engage in criminal activity—not even vice crimes.  (Mind you, I have no problem with anyone who does, so long as they didn’t hurt anyone else.)  And, a few of my family members are, were, or plan to be LEOs.  (That makes for interesting Thanksgiving discussions, let me tell you.)
            I used to defend LE against criticisms, but I became more enlightened about individual rights and have been reading Radley Balko, Billy Beck, David Codrea, et al. for years and have read far too many news accounts of LEOs and prosecutors covering for the “rotten apples” to have any faith in them.
            It’s a bit brainless to throw around the word “extreme” without a noun, since it’s just an adjective.  Being extremely honest, extremely respectful, extremely principled, etc. are good things, for example.  If you’re going to measure correctness based upon popularity, then I don’t mind being “extreme” when the herd is on the wrong side of an issue.

  • The problem was the camera – had there been no camera, I bet she could have had lemonade and cookies on the porch.

    It troubles me that our ‘guardians’ are afraid ahead of the fact of having their action recorded for posterity, it troubles me more that the legal system consistently agrees.

    • “The problem was the camera …”

      Bingo.

      • I note that law enforcement via camera is perfectly acceptable though.  Guess it’s cause they’re not recording our voices as we go through the intersection mumbling “damn!  that’s the 3rd red light today!!!!  I’m on a roll!”

        So, remember, if you’re recording the police kids, picture only!  no sound!
         

    • lookerIt troubles me that our ‘guardians’ are afraid ahead of the fact of having their action recorded for posterity, it troubles me more that the legal system consistently agrees. [emphasis orginal - dj505]

      Yes.  I suppose I can understand why the police aren’t keen to have their actions recorded; who wants to be the co-star of the next Rodney King video*?  Who wants to be in the position of having video evidence of even an honest mistake, or a case of honest overzealousness?

      But to whom much is given, from whom much is expected.  I don’t expect police officers to be perfect.  I DO expect them to be accountable.  I also expect them to uphold the law, and this means always behaving in way that brings credit to their badge and demonstrates that the public peace and order rests safely in their hands.  If that means submitting to having their actions videotaped so that the bad apples can be weeded out, then that seems a small price to pay.

      —–

      (*) I suppose I should be explicit: King got what was coming to him, and the officers were railroaded because a very biased, sensation-seeking MiniTru consistently played only part of the tape such that it APPEARED that King was the innocent victim of a bunch of brutal policemen.  If I was a policeman, I wouldn’t want to take a chance on something like that happening to me, either.

      • At WOFT, I had a buddy that was a CHIP guy, who belonged to a reserve outfit and was thus being trained to fly copters.  This was in the very early 70s.
        He told me the story of being in a running gun-fight with a carload of illegals who were also in the import/import business.  The fight started in LA, ran the distance to ALMOST the border, and petered out when the bad guys ran out of ammo.  At that point, they surrendered.
        I seriously wonder if I could have stopped where these officers did…but THEY did.  After nearly an hour of someone working hard at killing me, the deep, dark elements of my animal nature just seem like they’d be pretty hard to push down.  But these officers took the bad guys into custody with no serious injury.
        My buddy also told me that in LA county, all LEOs at the time were making “open holster” stops, because so many had been shot when stopping people to warn them about a taillight being out or something equally innocuous.
        I have a younger brother who was an MP, prison guard, and cop.  I was very relieved when he changed careers.
        The cop in this incident (the root post) was out of line.  So was every other man and women involved in the prosecution and trial.
         

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