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 Post subject: A CAVEAT TO JUDGE HARPER & TIMES APOLOGIA RE BARNES
PostPosted: Sat Jun 11, 2011 9:29 am 
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The scope of the Barnes decision is usurpation of human rights and the People's political sovereignty.

States Judge Harper, "Upon full reading of the Barnes opinion, it is readily apparent that it seeks to move Indiana law on this issue out of the common law era and into synch with legal literature... which abolish the right to resist an unlawful arrest based upon multiple factors."

Legal literature? Since when is legal literature dispositive of anything in the field of jurisprudence? Indeed, as law students are instructed early on, legal "literature" is as best secondary authority and represents utterly nothing more than the subjective perspectives and OPINIONS of the writer. What's more, the persuasive power of such "literature" carries no more intrinsic significance or meaning than law review articles published by law students.

Adds Harper, "There is legal scholarship which indicates the common law right came from a time in which resistance to an arrest by a peace officer did not involve the serious dangers it does today."

Again, legal literature, this time framed in terms of "scholarship" and amounting to nothing more than a self-serving reference to historical records, a record probably devoid of deconstructive critique as to historiography or the prejudices of class-oriented perspective(s). Such scholarship and legal literature amounts to nothing more than assertion of class preferences cloaked in the structures of formal discourse and limited to an elitist reading of the circumstances. I can pretty much guaranty such literature and articles were not made or insisted on to become part of mass media for the common man. This so-called invocation of literature and scholarship is subversive of democratic accountablility.

Harper states that, "This includes the rules of law that would exclude any evidence that was improperly seized during an unlawful entry. Further, there is a plethora of attorneys willing to sue police officers who improperly exercise police powers."

Really? On a contingency fee basis; and nevermind the prospects of judicially creating or extending additional 4th amendment immunities and defense(s) of mistake when sued, to say nothing of relaxation of reasonable suspicion standards and probable cause. This is a specious contention.

Also, "A major difference between jurisprudence now and at the common law is that in the modern era there is a right to bail."

Surely the judge jests? The right to bail? Why is it the victim who must shoulder the burden of police mistakes? Why is it the citizens who must undergo emasculation of their sovereignty and rights and be subject to bail? Why not emasculate or at least circumscribe the growing power of the police?

Harpers continues, "Had Barnes been arrested under common law he would have had to wait in a disease-ridden prison, likely shackled to the wall, using the same chamber pot for drinking water and human waste, until the judge or magistrate, who would have been a circuit rider, rode his horse into town to convene court in a local gathering place, such as the tavern."

Her Honor here appears to suggest that our legal history suffers inertia, that there has been no significant evolution in the theories and legal concepts constitutive of Anglo-American jurisprudence. By her reasoning Brown v. Brd of Education or Miranda are freaks of nature in our legal culture. By contrast, Barnes and the so-called legal literature referenced, have been ivory tower isolated and its radicality sprung suddenly on an unsuspecting citizenry. This is judicial subversion of the Fourth Amendment and Due Process.

What is disturbing about Judge Harper's position is she fails to address the sweeping application of Barnes. It is a blanket application against resisting ANY UNLAWFUL arrest, not just in emergency-like instances/cases of domestic battery. Indeed, she cleverly subsumes the blanket prohibition against our Fourth Amendment protections by ostensibly centering her discourse on the aspect of domestic violence, while declining to repudiate the decision's blanket prohibition against resistance.

This is nothing other than further justification of the judicial usurpation of our democratic values. One gets the disappointing sense the judge's discourse here seeks to create a drawbridge to insulate top from second-tier Americans. Indeed, it exhibits a class phobia for the People's growing realization of its fundamental existential sovereignty, a renewed autonomy, one that has undergone a deep re-evaluation of its true status in our government and regrounds our Social Contract beyond tacit consent, as individuals, along with the a renewed need of the co-extensive right to self-defense against encroaching police power. Nevermind, for now, the totalitarian groundwork being laid here for the subversion of the presumption of innocence.


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