Saturday, May 14, 2011

Indiana Supreme Court Abrogating Citizen's Right To Resist Unlawful Police Entry Into Home Making Headlines

It's not often that a decision by the Indiana Supreme Court gets national attention, but a case decided by Gov. Mitch Daniels' first and only appointee to the high court is getting noticed. The case could have been your run of the mill domestic case involving an argument between husband and wife where wife feels threatened, wife calls police, police respond to wife's call and proceed to haul husband off to jail. What else is new? A broad-sweeping abrogation of a recognized common law right to resist an unlawful entry of police into a person's home, however, has drawn a lot of attention to this case. Here are the basic facts in Barnes v. State:

Officer Lenny Reed, the first responder, saw a man leaving an apartment with a bag and began questioning him in the parking lot. Upon identifying the man as Barnes, Reed informed him that officers were responding to a 911 call. Barnes responded that he was getting his things and leaving and that Reed was not needed. Barnes had raised his voice and yelled at Reed, prompting stares from others outside and several warnings from Reed.

Officer Jason Henry arrived on the scene and observed that Barnes was ―very agitated and was yelling. Barnes ―continued to yell, loudly and did not lower his voice until Reed warned that he would be arrested for disorderly conduct. Barnes retorted, ―if you lock me up for Disorderly Conduct, you’re going to be sitting right next to me in a jail cell. Mary came onto the parking lot, threw a black duffle bag in Barnes’s direction, told him to take the rest of his stuff, and returned to the apartment. Reed and Henry followed Barnes back to the apartment. Mary entered the apartment, followed by Barnes, who then turned around and blocked the doorway. Barnes told the officers that they could not enter the apartment and denied Reed’s requests to enter and investigate. Mary did not explicitly invite the officers in, but she told Barnes several times, ―don’t do this and ―just let them in. Reed attempted to enter the apartment, and Barnes shoved him against the wall. A struggle ensued, and the officers used a choke hold and a taser to subdue and arrest Barnes. Barnes suffered an adverse reaction to the taser and was taken to the hospital.
At trial, Barnes' attorney wanted the jury to be instructed that he had the right to reasonably resist police from making a warrantless entry into his home based on a long-recognized right at common law but was denied the instruction by the trial court judge. The jury found Barnes guilty of resisting a law enforcement officer, battery on a law enforcement officer and disorderly conduct. The Indiana Court of Appeals ruled it error for the trial court to deny the instruction to the jury and ordered a new trial. In a 3-2 opinion authored by Judge Steven David, the Indiana Supreme Court reversed the lower court ruling and completely abrogated recognition of the common law right. “In sum, we hold that [in] Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.” Apparently, none of the three justices or their clerks caught the grammatical error in their sweeping decision. Explaining the Court's ruling, Justice David wrote:

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. E.g., Warner, supra, at 330 (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist); State v. Hobson, 577 N.W.2d 825, 835–36 (Wis. 1998) (citing the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies). 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. E.g., Hobson, 577 N.W.2d at 836 (―But in arrest situations that are often ripe for rapid escalation, one’s measured’ response may fast become excessive.). Further, we note that a warrant is not necessary for every entry into a home. For example, officers may enter the home if they are in ―hot pursuit of the arrestee or if exigent circumstances justified the entry. E.g., United States v. Santana, 427 U.S. 38, 42–43 (1976) (holding that retreat into a defendant‘s house could not thwart an otherwise proper arrest made in the course of a ―hot pursuit‖); Holder v. State, 847 N.E.2d 930, 938 (Ind. 2006) (Possible imminent destruction of evidence is one exigent circumstance that may justify a warrantless entry into a home if the fear on the part of the police that the evidence was immediately about to be destroyed is objectively reasonable.). Even with a warrant, officers may have acted in good faith in entering a home, only to find later that their entry was in error. E.g., Arizona v. Evans, 514 U.S. 1, 11 (1994); United States v. Leon, 468 U.S. 897, 922–25 (1984). In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance.
Justices Brent Dickson and Robert Rucker offered separate, stinging dissenting opinions. Justice Dickson wrote, “In my view, the wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad.” "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," Justice Rucker opined. "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."

A Drudge Report headline linking to an Indiana newspaper story on the Court's ruling reads, "Indiana court rules Americans have no right to resist illegal police entry into home." The Northwest Indiana Times story begins:

Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry . . .

Professor Ivan Bodensteiner, of Valparaiso University School of Law, said the court's decision is consistent with the idea of preventing violence.

"It's not surprising that they would say there's no right to beat the hell out of the officer," Bodensteiner said. "(The court is saying) we would rather opt on the side of saying if the police act wrongfully in entering your house your remedy is under law, to bring a civil action against the officer."
I think most legal observers would agree with Professor Bodensteiner's defense of the case as serving to prevent violence, particularly in a case such as this one where tempers had already flared as a result of a domestic dispute. It's the total sweeping aside of the common law rule that is unsettling. "Indiana Supreme Court issues death warrant for Fourth Amendment" blares a headline at Pajamas Media. "This case may not get to the Supreme Court of the United States; that requires time and money," writes Dan Miller. "It should get there because it purports to abrogate — in Indiana — prior Supreme Court rulings on the Fourth Amendment and because cases embodying bad law tend to breed and multiply." I suspect the case may get even more attention in the days ahead if Gov. Daniels decides to run for president for no other reason than the decision is authored by his first and only state supreme court appointee.

Hat tip to Indiana Law Blog.

UPDATE: Hot Air weighs in with this critical take on the decision:

One has to wonder what part of “unlawful” Justice David doesn’t get. What part of the right of the people to “be secure… shall not be violated” wasn’t taught to him in law school.

How secure is anyone in their “persons, houses, papers and effects” if, per David, a police officer can waltz into any home he wants to “for any reason or no reason at all?”

The given reason by the Justice is resistance is “against public policy?” What policy is that? For whatever reason, most believe our public policy as regards our homes is set by the 4th amendment to the US Constitution. Since when does Indiana’s “public policy” abrogate the Constitutional right to be “secure in our persons, houses, papers and effects”?

Additionally, most would assume it is the job of the police not to “escalate the level of violence”, not the homeowner. Like maybe a polite knock on a door to attempt an arrest instead of a battering ram and the violent entry of a full SWAT team to arrest a suspected perpetrator of a non-violent crime. Maybe a little pre-raid intelligence gathering, or snagging the alleged perp when he leaves the house to go to work, or walk the dog, or go to the store.

Now citizens in Indiana are to give up their 4th Amendment rights because it might “elevate the violence” if they attempt to protect themselves from unlawful activity? Sounds like the “don’t resist rape” nonsense that was once so popular.
It looks like someone else has picked up on the rape analogy made in the Hot Air post. Len Rockwell pens a post entitled, "Indiana Supreme Court upholds the Rapist Doctrine: Don't resist--you'll just make it worse."


Cato said...

Indiana is an incipient police state.

Our courts are a national embarrassment which offer the most illogical and strained reasoning in service of ensuring certain desired outcomes.

It's anti-logic, starting with your conclusions as givens and creating the premises to fit.

I don't know how any thinking man can feel obligated to obey this government and our legal system. This government is grounded in nothing, merely being contemporary whims supported by paramilitary forces.

A cop is a citizen, no more. If a citizen enters your home improperly and with aim to do you harm, you kill him, cop, or not.

SW Lane said...

It is a stupid ruling that flies in the face of the 4th amendment.

That being said, I don't think it is going to be 'taken advantage' of by police officers. The threat of tort action, not to mention unprofessional behavior will preclude such actions by the police.

(of course SOME will see this as open season for home invasion by jack-booted gestapo-type police)

BayernFan said...

It takes away from every jury from now on the ability to conclude that a homeowner acted reasonably against an unlawful police entry.

Police unlawfully enter your home, you reasonably resist, and are arrested for resisting. Juries are no longer available to you as a bulwark against unlawful police conduct.

Concerned Taxpayer said...

1) Police were responding to a 911 call.
2) The wife gave her implied consent for the police to enter THEIR dwelling ("don’t do this and ―just let them in.")
3) Due to the way the husband had been acting, both in the parking lot and in the apartment, officers were obligated to ensure the safety of the wife.
Case closed.

Advance Indiana said...

The facts of the case are not what is at issue, CT. It's the abrogation of the time-proven common law rule. Even if the rule had been applied by allowing the instruction to the jury, the same result would have likely been reached.

Indy4u2c said...

This is one of the few decisions by Indiana Supremes that I agree with! It makes sense and is good policy.

The Supremes properly weighed the evidence and issued a decision that we can all agree is just and proper! After all, we don't live in common law times, this is not "survival of the fittest."

The Supremes noted that an aggrieved arrestee has means unavailable at common law for redress against unlawful police action (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist).

Further, the Supremes cited the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies).

It is common sense 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 case.

―But in arrest situations that are often ripe for rapid escalation, one’s measured’ response may fast become excessive.

This is 2011. Today it may take a team of lawyers months to prepare to argue their cause. An educated court may take months or even a year to issue it's decision on the matter. Thus, allowing violent resistance is obviously wrongful. If educated attorneys and judges may take months or years to render a proper decision on whether the entry was "unlawful" then how can they say to use force??? People will be hurt or killed if that were allowed and we'd have "survival of the fittest" instead of rule of law.

There are remedys if a court decides an entry were "unlawful" after the fact. Remedies that include the exclusionary rule, tort claim, civil action, internal discipline.

Thus, the court has rendered a just and proper decision that is also the only righteous decision that can stand.


So is this the end of the 4th amendment?

So no longer do cops have to have probable cause?

Citizen Kane said...

I was disgusted when I read about this yesterday; but, of course, about everything I hear about emanating from government disgusts me.

The idea that resistance leads to violence is incorrect. All the cop had to do was back off and not attempt to enter after initially being denied entry. He could have requested to speak to the women outside, etc. His insistence in entering the house precipitated the violence, not the initial resistance, in my opinion.

Sorry, I don't believe in obediently deferring to every command some guy with a badge directs at me. If the logic of the request is not present, I will ignore or challenge it. I will have a problem with anyone entering my home without permission.

Bill said...


Those "remedies" are all smoke screens. Let's look at how they would work in practice:

1. Bail - so what. You're still going to have to pay it. Plus end up with a conviction on your record.

2. Arraignment/Probable Cause - probable cause is simply determined by reading an affidavit put together by the cop. Your challenge to probable cause is called a trial.

3. Exclusionary rule - might be able to exclude anything else found in the house, but at the minimum you will be charged with and convicted of resisting.

4. Tort claim/civil remedy - cops can argue "qualified immunity" to any injury you suffer. In other words, your acts of resistance is their defense in a civil lawsuit.

5. Internal discipline - we all know this doesn't happen.

Cato said...

The elemental principle of law upon which our rights rest, the very respect for which our government is chartered and restrained, is that every man is a sovereign, and a man's home is his castle.

That is, the state is subordinate to a citizen. This ruling is a coup d'etat, utterly inverting the relationship of the state to the citizen.

This ruling is outright rejected by citizen-masters as the usurpation of Liberty by a tyrannical government.

Government is not boundless. It's authority ends at me and my property. I do no consent to a government formed on a foundation of this ruling.

The police are the enemies of Freedom, and the judicial branch has destroyed the ideological foundations of this country in creating a series of innumerable permissions for police to destroy Liberty.

If the government won't restrain itself, it is declared void, and we need a new arrangement.

Indy4u2c said...


Do you understand your own post? Bail is returned if the defendant appears in court as required. Your comment "you still have to pay it is incorrect." One must post it to assure court appearance. You are incorrect on probable cause, it is DETERMINED by a Judge! Exclusionary rule means evidence that a learned and informed court finds as "unlawfully obtained" may not be used. That is sufficent remedy in and of itself. That means that the fruit of the poison tree may not be used. --And the Supremes have rules you may NOT resist. To do so will result in your conviction for resisting and it should! The Supremes have set appropriate remedies, but one may not on-site claim "unlawful", that must be determined by a Judge and only by a Judge! We cannot allow criminals to make false claims to justify murder!!!

Tort claims allow proper remedies. You whine about "qualified immunity"...which exists to eliminate claims based on discretion, etc. Bottom line, if a tort exists, there is remedy in court...just show your damage.

Internal discipline: well, Bill, several high profile cases in Central Indiana show that internal discipline does exist. It may not exist properly in rural "good ole boy" parts of the state (Fisher's school principal speed-dialing the police 'Captain' to avoid DWI comes to mind...but even then, the media used video and exposed the town's corruption and the prosecutor did serve justice.)

Cato said...

Indy4, you truly can't be serious in arguing that suing an Indiana cop in an Indiana court will bring any sort of remedy.

Indiana courts are seen nationwide as the dark angels of the police state.

The courts protect the police as vigorously as the FOP. The courts are playing for the cops.

The time to stand up for yourself is at the scene, not later in a court. If you don't have rights at the scene, you don't have them.

Being servants, cops need to be taught to back down and act take orders from their masters who pay their salaries.

Bill said...


You generally have to pay 10% of the bond amount. You don't get that back. Probable cause determination is made at an initial pre-trial...based on the reading of what the cop put in the affidavit. That's it. Qualified immunity will bar a claim when the defendant is resisting. It is simply false that you have a right to go to court for any wrong. Various legal doctrines of immunity will bar it, not just discretionary immunity.

Fact of the matter is I have a right to use reasonable force to repel anyone who barges into my house without right. Why should the same not be true with regard to cops?

sleibson said...

Dear Readers,
I resisted unlawful entry into my home 10 months ago when my soon to be ex-wife called 911 and stated I had threatend her and was armed! I did not know this when I saw the sheriff racing down my very long drive way. I locked all my doors and had just enough time to answer my side door to a hugh Lt. and his female officer who demanded entry into my home. I politely refused and asked them what the problem was. The Lt started yelling his demands over and over “Let me in right now this is a 911 call.” I told him that he was not comming into my home but I would be glad to get my wife for him. This only made him act more irate. I then found myself spending time asking him to calm down because his behavior was not right and he would have to get a supervisor on scene if he couldn’t calm himself. I was speaking very softly and slowly as not to freak him out any more than he already was.
So with that done I head upstair to get my wife but she was no where to be found for as you see, while the very smart Lt had my attention, my wife had walked down the stairs and had openned the back door and let the officers enter my home. As I was comming down the stairs the Lt was comming up the stairs and I sat down on the first step that my foot hit when a saw the Lt eye to eye. He then spent 5 minutes cursing me out in my home for not letting him in immediately. I am glad that a Lt was training a young officer that day even if he abused his authority. Had the pair of officers been the typical pumped-up bullies that seem to be hired as officers these days the outcome might have been tragic.
I will always believe that my wife wanted the police to kill me in my home that day 10 months ago. Death by Cop. The perfect crime.
Thank you for your time