KY clerk refuses to issue marriage licenses

[*Lulu*]

The "redefinition" is now part of public policy.

 

And as a society, we can redefine whatever we choose.

Which is why we count every person as one during census taking instead of some people only being 3/5ths of a person.

 

The founders of our country were not infallible. They were not saints.

 

Shame on us as a society if we marginalize or mistreat a group of people with the weak justification that "that is how it has always been".

[ChocolateReignRemix]

OR STOP them. 

 

Of course, the homeowner cannot assault a cop. 

 

But the person in the case in Indiana did assault a cop.

[Mergath]

But the person in the case in Indiana did assault a cop.

 

And a cop who was entering the home on a domestic violence call, from what I'm reading.

 

I'm really having trouble getting my brain around this one. From what I can see, the cops were called because a guy is involved in some kind of domestic abuse situation with his partner. The guy tries to tell the cop not to come in, the cop comes in anyway because domestic abuse, the guy assaults the cop... and people are defending the abuser?

[*Lulu*]

And a cop who was entering the home on a domestic violence call, from what I'm reading.

 

I'm really having trouble getting my brain around this one. From what I can see, the cops were called because a guy is involved in some kind of domestic abuse situation with his partner. The guy tries to tell the cop not to come in, the cop comes in anyway because domestic abuse, the guy assaults the cop... and people are defending the abuser?

Yeah, I feel like I'm missing something on this too.

[justasque]

OR STOP them. 

 

Of course, the homeowner cannot assault a cop.

 

Which is exactly what the decision was in the case you cited, yes?  

 

While a defendant may reasonably resist an unlawful arrest, reasonable resistance does not include battery or violent acts against police officers.   

 

(See this prior post for a longer excerpt from the decision.)http://forums.welltrainedmind.com/topic/562434-ky-clerk-refuses-to-issue-marriage-licenses/?p=6571050)

[TranquilMind]

 

Which is exactly what the decision was in the case you cited, yes?  

 

While a defendant may reasonably resist an unlawful arrest, reasonable resistance does not include battery or violent acts against police officers.   

 

(See this prior post for a longer excerpt from the decision.)http://forums.welltrainedmind.com/topic/562434-ky-clerk-refuses-to-issue-marriage-licenses/?p=6571050)

The correct reasoning was in the dissent.  The Majority left this far too open to abuse. 

 

 

Justice Dickson wrote he would have preferred the majority to have taken a more narrow approach by “construing the right to resist unlawful police entry, which extends only to reasonable resistance, by deeming unreasonable a person’s resistance to police entry in the course of investigating reports of domestic violence. ... Such a more cautious revision of the common law would have, in cases not involving domestic violence, left in place the historic right of people to reasonably resist unlawful police entry in their dwellings.â€

 

In his dissent, Justice Rucker felt the majority’s ruling was far too broad and would allow the government to enter homes illegally, without the necessity of a warrant, consent, or exigent circumstance. He also said the right to resist unlawful entry into the home rests on the Fourth Amendment.

 

 

This is the problem.  It has nothing to do with assault and battery, which was ALWAYS illegal and actionable.  The problem is now that cops can enter at will, without necessity of a warrant, consent, or exigent circumstance, just as Justice Rucker states. 

 

[poppy]

I'm a little confused why we are talking about this case.  What does it have to do with gay marriage? Is someone arguing that judges sometimes get things wrong? No question, that's true. Hello Dred Scott. Or in our lifetimes, the egregious Gore v Bush! Is the argument that the judicial branch .... shouldn't interpret the Constitution? (Which was the document that established that branch?)

Is the argument that our freedoms are being eroded? I can tell you for a fact that the freedom of gay couples and families to finally have a right to enjoy the privileges of marriage is cause for great joy and celebration for many Americans.

[Pam in CT]

It isn't a pleasant thing for me to talk about and I'm not going to get into it in detail here, but my husband, during the first couple years of our marriage, was extremely mentally ill and assaulted me on multiple occasions. If he was allowed to keep the police from entering our apartment whenever they didn't have a warrant, or if I had to get to the door and explicitly invite the police inside for them to be allowed into our home, there's a good chance I wouldn't be here right now.

 

A person being in immediate danger trumps a person's right to keep the police out of their home. Otherwise there would be a lot more deaths from domestic violence every year.

 

Mergath, I certainly can't like this post, but I am awfully glad the police did enter your apartment and you are here to tell the story.

 

 

 

That said, I agree with several other posters that the police officer entry case has exactly nothing to do with the Kim Davis case.  Perhaps a spin-off would be appropriate.

[justasque]

No, the homeowner can't assault them.

OR STOP them. 

 

Of course, the homeowner cannot assault a cop.

 

The correct reasoning was in the dissent.  The Majority left this far too open to abuse. 

 

Justice Dickson wrote he would have preferred the majority to have taken a more narrow approach by “construing the right to resist unlawful police entry, which extends only to reasonable resistance, by deeming unreasonable a person’s resistance to police entry in the course of investigating reports of domestic violence. ... Such a more cautious revision of the common law would have, in cases not involving domestic violence, left in place the historic right of people to reasonably resist unlawful police entry in their dwellings.â€

 

In his dissent, Justice Rucker felt the majority’s ruling was far too broad and would allow the government to enter homes illegally, without the necessity of a warrant, consent, or exigent circumstance. He also said the right to resist unlawful entry into the home rests on the Fourth Amendment.

 

This is the problem.  It has nothing to do with assault and battery, which was ALWAYS illegal and actionable.  The problem is now that cops can enter at will, without necessity of a warrant, consent, or exigent circumstance, just as Justice Rucker states.

TM, I am confused about what you are saying here.  Could you clarify?  I want to understand your position.

 

As I understand it, this case was about "Does a homeowner, when faced with the possibility of an illegal search/entry by a police officer, have the right to use force against the officer to resist entry?" And the decision was "The castle doctrine is not a defense to the crime of battery or other violent acts on a police officer. While a defendant may reasonably resist an unlawful arrest, reasonable resistance does not include battery or violent acts against police officers. “We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action.†“We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest—as evident by the facts of this instant case.† 

 

When you say "cops can enter at will, without necessity of a warrant, consent, or exigent circumstance", are you saying that they can, de facto, enter at will because the homeowner cannot violently resist them, OR that the court struck down the necessity of the police having either a warrant, the homeowner's consent, or an exigent circumstance?

[Mergath]

Mergath, I certainly can't like this post, but I am awfully glad the police did enter your apartment and you are here to tell the story.

 

 

 

That said, I agree with several other posters that the police officer entry case has exactly nothing to do with the Kim Davis case. Perhaps a spin-off would be appropriate.

It's not related, and I'm not the one who brought it up. But with people saying that cops shouldn't enter homes without permission, and that the guy was right in this case, I couldn't not comment on that.

[Pam in CT]

Understood!  I'm with you.

[Haiku]

I can't imagine what a horrible fix we would be in as a society if the police could not enter a home to keep one person safe because another person refused them admittance. That's nightmarish.

[TranquilMind]

 

TM, I am confused about what you are saying here.  Could you clarify?  I want to understand your position.

 

As I understand it, this case was about "Does a homeowner, when faced with the possibility of an illegal search/entry by a police officer, have the right to use force against the officer to resist entry?" And the decision was "The castle doctrine is not a defense to the crime of battery or other violent acts on a police officer. While a defendant may reasonably resist an unlawful arrest, reasonable resistance does not include battery or violent acts against police officers. “We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action.†“We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest—as evident by the facts of this instant case.† 

 

When you say "cops can enter at will, without necessity of a warrant, consent, or exigent circumstance", are you saying that they can, de facto, enter at will because the homeowner cannot violently resist them, OR that the court struck down the necessity of the police having either a warrant, the homeowner's consent, or an exigent circumstance?

IF, then.  The issue was really whether the right to resist unlawful entry also extends to a police officer (not whether or not homeowner can use force).  You can't "resist" a cop at all.  What does that mean? 

If the cops cannot be resisted and can enter without a warrant, consent, or exigent circumstance, then they can clearly enter at will for any reason whatsoever then the necessity for a warrant, consent or exigent circumstance has de facto been removed (though a later redress is possible if a court would find the reason insufficient). 

 

Try winning a case against a cop, however.  He says that he heard a noise or saw something - he wins.   Most people won't pursue legal redress anyway, and while they could sue later, such a ruling disproportionately affects the poor, who can't afford attorneys.   Most people would just rather stay under the radar than sue the police.  

 

Cops should be required to have warrants in all cases, absent exigent circumstances or consent.  It isn't as if warrants are even difficult to get. 

So yeah, the upshot is that they can freely enter now.     

[TranquilMind]

I can't imagine what a horrible fix we would be in as a society if the police could not enter a home to keep one person safe because another person refused them admittance. That's nightmarish.

Sigh.

 

They can.  Exigent circumstances. 

[ChocolateReignRemix]

IF, then.  The issue was really whether the right to resist unlawful entry also extends to a police officer (not whether or not homeowner can use force).  You can't "resist" a cop at all.  What does that mean? 

If the cops cannot be resisted and can enter without a warrant, consent, or exigent circumstance, then they can clearly enter at will for any reason whatsoever then the necessity for a warrant, consent or exigent circumstance has de facto been removed (though a later redress is possible if a court would find the reason insufficient). 

 

Try winning a case against a cop, however.  He says that he heard a noise or saw something - he wins.   Most people won't pursue legal redress anyway, and while they could sue later, such a ruling disproportionately affects the poor, who can't afford attorneys.   Most people would just rather stay under the radar than sue the police.  

 

Cops should be required to have warrants in all cases, absent exigent circumstances or consent.  It isn't as if warrants are even difficult to get. 

So yeah, the upshot is that they can freely enter now.     

 

Except, as in the Indiana case, they can be resisted within reason, which does not include battery.  And I have only read the summary, but I would wager in this case the police were claiming exigent circumstances.

 

I cannot read anywhere in this summary where it says or implies.the police can enter "for any reason".

 

To the second bolded - that is what the law still says.  All this case says is just because a citizen *believes* a cop is entering their home illegally, the the Castle Doctrine does not provide a defense against battery on an officer.

 

 

[ChocolateReignRemix]

OR STOP them. 

 

Of course, the homeowner cannot assault a cop. 

 

So basically you agree with Indiana decision?

 

Cool.

[justasque]

IF, then.  The issue was really whether the right to resist unlawful entry also extends to a police officer (not whether or not homeowner can use force).  You can't "resist" a cop at all.  What does that mean? 

If the cops cannot be resisted and can enter without a warrant, consent, or exigent circumstance, then they can clearly enter at will for any reason whatsoever then the necessity for a warrant, consent or exigent circumstance has de facto been removed (though a later redress is possible if a court would find the reason insufficient). 

 

Try winning a case against a cop, however.  He says that he heard a noise or saw something - he wins.   Most people won't pursue legal redress anyway, and while they could sue later, such a ruling disproportionately affects the poor, who can't afford attorneys.   Most people would just rather stay under the radar than sue the police.  

 

Cops should be required to have warrants in all cases, absent exigent circumstances or consent.  It isn't as if warrants are even difficult to get. 

So yeah, the upshot is that they can freely enter now.     

 

I'm still confused.  It sounds like you are saying that this decision changed the rules, so that (putting aside scenarios with exigent circumstances or consent) cops no longer have to get a warrant to enter your home.  Is that how you are interpreting this decision?  That cops no longer have to get a warrant, so they can enter your home freely?  Or am I misunderstanding what you are saying?  

That is not at all what I read the excerpt from the decision to mean. I read it to mean that you can't use violence against a cop who is illegally entering your home (in other words, you can't use violence against a cop, even if he is a cop who is entering your home without a warrant, without consent, and without exigent circumstances).  

 

(I am genuinely confused as to your reading of the case and its implications, and trying hard to understand.  I am very PRO cops-needing-warrants, except of course in exigent circumstances or emergencies.)

[PeacefulChaos]

I've not followed this thread at all, but I wanted to jump on here and say that, even though I've watched the news  and know what is going on with this, when I first saw the thread title, my mind did not think KY as in Kentucky.  I was really confused for a second.

 

That's all.

[TranquilMind]

So basically you agree with Indiana decision?

 

Cool.

It was an unnecessary decision.  That was always the law that people could not assault cops. 

But before, cops could not enter without warrants, consent, or exigent circumstances.  Exigent circumstances already existed here.  This case was all about a procedural instruction during trial. 

[ChocolateReignRemix]

It was an unnecessary decision.  That was always the law that people could not assault cops. 

But before, cops could not enter without warrants, consent, or exigent circumstances.  Exigent circumstances already existed here.  This case was all about a procedural instruction during trial. 

 

I don't think you know what necessary means in this case.  He asserted the right to a defense, a trial course disagreed and didn't allow the requested instructions.  A subsequent appeals court reversed that decision and the case ended up in front of the Indiana Supreme Court.  The decision was necessary to address the findings of the appellate court.

 

Furthermore, you have in no way demonstrated how this case changed Indiana law.  No where in the decision are the police given the authority to "enter without warrants, consent, or exigent circumstances".

[poppy]

It was an unnecessary decision.  That was always the law that people could not assault cops. 

But before, cops could not enter without warrants, consent, or exigent circumstances.  Exigent circumstances already existed here.  This case was all about a procedural instruction during trial. 

 

No. The court was asked if the charges against the man who attacked the cop should be thrown out. The court said no, the 4th amendment doesn't work that way.     Just because one grandstanding judge said something to the effect of "this tears the 4th amendment to shreds!!" doesn't mean that that is true.

[TranquilMind]

I don't think you know what necessary means in this case.  He asserted the right to a defense, a trial course disagreed and didn't allow the requested instructions.  A subsequent appeals court reversed that decision and the case ended up in front of the Indiana Supreme Court.  The decision was necessary to address the findings of the appellate court.

 

Furthermore, you have in no way demonstrated how this case changed Indiana law.  No where in the decision are the police given the authority to "enter without warrants, consent, or exigent circumstances".

The FINDING was unnecessarily broad, as apparently, I need to be more precise, though I do believe I stated that before.  My apologies.

 

Justice Rucker's dissent is the correct reasoning on this particular issue: 

 

"But the common law rule supporting a citizen's right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the United States Constitution. Indeed, "the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.

 

At issue in this case is not whether Barnes had the right to resist unlawful police entry into his home—a proposition that the State does not even contest—but rather whether the entry was illegal in the first place, and if so, whether and to what extent Barnes could resist entry without committing a battery upon the officer. Federal Fourth Amendment jurisprudence is equal to the task of resolving these issues. In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally—that is, without the necessity of a warrant, consent, or exigent circumstances. And that their sole remedy is to seek refuge in the civil arena. I disagree and therefore respectfully dissent."

[TranquilMind]

No. The court was asked if the charges against the man who attacked the cop should be thrown out. The court said no, the 4th amendment doesn't work that way.     Just because one grandstanding judge said something to the effect of "this tears the 4th amendment to shreds!!" doesn't mean that that is true.

It is indeed true. 

[*Lulu*]

Maybe I need a drink to understand the connection between SSM and assaulting an officer.

 

So far all I've got is that they are both signs of the decline of our country into anarchy, moral bankruptcy, and that the good old days are always better?

 

What am I missing?

[poppy]

It is indeed true. 

 

You have not persuaded me, just at the justice did not persuade his colleagues.    And it is not relevant to the topic of this thread. Or, what's that word you like? It is inapposite.

[idnib]

Sooo...

 

What do you think is going to happen tomorrow when she returns to work?

[DragonFaerie]

Sooo...

 

What do you think is going to happen tomorrow when she returns to work?

 

I get annoyed just THINKING about whatever nonsense she might pull.  I'm fairly certain, however, that she won't be content to just go in, sit at her desk, and get back to work while her deputy clerks handle the marriage licenses.  No, that would be far too dull and mundane after her brush with celebrity.  *sigh*

[*Lulu*]

Sooo...

 

What do you think is going to happen tomorrow when she returns to work?

My guess is she will do whatever her advisors have determined will keep media attention on her "plight and persecution".

[Mergath]

Unless someone shows up to apply for a marriage license, it will probably be a fairly uneventful day.

 

If they do, I'll be curious to see if she's going to fire the member of her staff who has said he'll give out marriage licenses whether she likes it or not.

[Carol in Cal.]

I hope that there is a way to avoid using her name on such licenses.

[Rosie_0801]

I hope that there is a way to avoid using her name on such licenses.

 

Yeah. Who'd want her name on their marriage license?

[ChocolateReignRemix]

I hope that there is a way to avoid using her name on such licenses.

 

I don't.  There is no need to change laws to protect a bigot.

[Guest]

I hope that there is a way to avoid using her name on such licenses.

Not me. If she refuses to do her job, she needs to step down.

[justasque]

I hope that there is a way to avoid using her name on such licenses.

 

The ones they issued while Mrs. Davis was in jail did not bear her name.  

 

She has raised the issue of whether these licenses, and therefore the marriages the licenses authorized, are legal.

[Carol in Cal.]

Yeah. Who'd want her name on their marriage license?

True that!

[idnib]

The ones they issued while Mrs. Davis was in jail did not bear her name.  

 

She has raised the issue of whether these licenses, and therefore the marriages the licenses authorized, are legal.

 

Yeah, she's ina bit of a pickle.

 

She doesn't want her name on the licenses, but when they are given out without her name on them, she says they're not legal. So she wants the state to change the marriage licenses to be given out under the authority of the state, not the county, which will affect the jobs of the other ~120 people in her position in other counties. And that would take an act of the legislature, which won't be able to act on it until January.

[Carol in Cal.]

.... state to change the marriage licenses to be given out under the authority of the state, not the county, which will affect the jobs of the other ~120 people in her position in other counties. And that would take an act of the legislature, which won't be able to act on it until January.

Seems like an example of reasonable accommodation to me.

There has to be some kind of workaround for the legislative calendar issue.  I mean, it's ridiculous to think that the state government can't do anything for 3 1/2 months.  I wonder what provision there is for that?

[poppy]

The other 119 county clerks might not think it's  a reasonable accommodation.

[idnib]

Seems like an example of reasonable accommodation to me.

There has to be some kind of workaround for the legislative calendar issue.  I mean, it's ridiculous to think that the state government can't do anything for 3 1/2 months.  I wonder what provision there is for that?

 

I think the provision is that the governor at his or her discretion can convene them "on extraordinary occasions" but it costs ~$60k/day of taxpayer money and this would take multiple days.

[BrookValley.]

Seems like an example of reasonable accommodation to me.

There has to be some kind of workaround for the legislative calendar issue.  I mean, it's ridiculous to think that the state government can't do anything for 3 1/2 months.  I wonder what provision there is for that?

 

 

I think the provision is that the governor at his or her discretion can convene them "on extraordinary occasions" but it costs ~$60k/day of taxpayer money and this would take multiple days.

 

Yep, the way I understand it is what idnib describes--they can convene a special out-of-session session if necessary. But I wager we all likely agree the taxpayers should not foot the bill for any more of this nonsense...

[ChocolateReignRemix]

Seems like an example of reasonable accommodation to me.

There has to be some kind of workaround for the legislative calendar issue.  I mean, it's ridiculous to think that the state government can't do anything for 3 1/2 months.  I wonder what provision there is for that?

 

There doesn't need to be a reasonable accommodation in this case.

[ktgrok]

Seems like an example of reasonable accommodation to me.

There has to be some kind of workaround for the legislative calendar issue.  I mean, it's ridiculous to think that the state government can't do anything for 3 1/2 months.  I wonder what provision there is for that?

and what if ONE state legislator or something doesn't want their authority behind the SSM certificates? Does having the state's authority behind the certificate mean they can stop the issuing of them? I mean, the buck has to stop somewhere. 

[Carol in Cal.]

My suggestion would be to push the authority down a level rather than moving it up.

Deputies should be able to authorize on their own.

[Ravin]

1. I did indeed cite the case. You can read it yourself. I don't need to expound upon the legal reasoning ramifications of something like this, but I am qualified to do so.

 

2. I did indeed say that it was a State Supreme Court decision.

 

3. The Bill of Rights are all important and ALL being eroded, which is why it matters.

Except constitutional rights aren't being eroded, they are being more broadly applied. And a state case doesn't speak well to that. SCOTUS is protective of the home in particular. The decision on marriage is an application of constitutional rights. You on the one hand complain about their erosion, and on the other object to their application.

[Ravin]

The correct reasoning was in the dissent. The Majority left this far too open to abuse.

 

 

Justice Dickson wrote he would have preferred the majority to have taken a more narrow approach by “construing the right to resist unlawful police entry, which extends only to reasonable resistance, by deeming unreasonable a person’s resistance to police entry in the course of investigating reports of domestic violence. ... Such a more cautious revision of the common law would have, in cases not involving domestic violence, left in place the historic right of people to reasonably resist unlawful police entry in their dwellings.â€

 

In his dissent, Justice Rucker felt the majority’s ruling was far too broad and would allow the government to enter homes illegally, without the necessity of a warrant, consent, or exigent circumstance. He also said the right to resist unlawful entry into the home rests on the Fourth Amendment.

 

 

This is the problem. It has nothing to do with assault and battery, which was ALWAYS illegal and actionable. The problem is now that cops can enter at will, without necessity of a warrant, consent, or exigent circumstance, just as Justice Rucker states.

 

Sounds like Justice Rutgers is engaging in hyperbole. If this ruling is applied as broadly as he says it can be, it will not hold up to scrutiny by SCOTUS.

 

I do think the lack of defense and expectation that judges will be free with the exclusion remedy is an overly optimistic view of how police conduct and criminal justice typically play out from a viewpoint of protecting rights. People should not only be protected from wrongful police conduct after the fact.

[Ravin]

An accomodation which requires legislation to implement exceeds the bounds of "reasonable".

[idnib]

My suggestion would be to push the authority down a level rather than moving it up.

Deputies should be able to authorize on their own.

 

 

I don't disagree that they should be authorized on their own, but what if they also refuse? The trouble with going down is there's a limit to how far down you can go. What if in a smaller county, there's one clerk and one deputy and they both refuse?

[Carol in Cal.]

I don't disagree that they should be authorized on their own, but what if they also refuse? The trouble with going down is there's a limit to how far down you can go. What if in a smaller county, there's one clerk and one deputy and they both refuse?

Then it's not reasonable accommodation, anymore, right?

 

In this particular case all or most of the deputy clerks have already told the judge they would sign off.

[ChocolateReignRemix]

The much simpler solution would be for this vile creature to just do her job.

[Guest]

I believe she returns to work today. I wonder how many marriage licenses they do in an average day? It can't be that many.