Tuesday, May 17, 2011

A Legislative Response To Barnes v. State

State Sen. Mike Young (R) tells WRTV News he plans to introduce legislation to overturn the controversial 3-2 Indiana Supreme Court decision in Barnes v. State. That's the decision that abrogated the long-followed common law rule in Indiana that a homeowner had a right to reasonably resist an unlawful entry of a police officer into his home. Young says his legislation will create a statutory right consistent with the common law rule tossed out by our state's Supreme Court last week.

Public reaction to the decision has been negative from people of all political perspectives. Indiana State Police are investigating threatening e-mails and phone calls the Supreme Court says it received in the aftermath of its decision. According to a police spokesman, most of the threats have been directed at police.

UPDATE: An observant reader sends this story about a person gaining unlawful entry to your home by posing as a police officer:

Worcester police said two mask-wearing intruders burst into a house on Randall Street around 8:30 Friday morning.

“They heard loud knocking,” said Sgt. Kerry Hazelhurst of the Worcester Police Department. “Before they knew it, there were two people entering the kitchen. They were yelling that they were the police and to get on the ground. They ordered two occupants on the ground - one had a gun - and held the two on the ground at gunpoint while the other person ransacked the home. They were there for a few minutes and they both ended up fleeing the home without taking anything of value.”

Police said the intruders were not wearing uniforms or badges, however they said one of them did have on a reflective vest.

One woman, who didn't want to be identified, said she was inside the home during the invasion. She said it was a terrifying experience. Neighbors said they too were rattled by the experience. Police said they are concerned about their safety as well.

Police added that there were two similar home invasions in Worcester in November when the intruders claimed to be police.

Authorities said that is a disturbing trend.

“It increases the risk for our officers that conduct legitimate raids into homes. The people that are being raided might feel that this could be a fake raid and this could be robbing them instead and they might feel to retaliate,” said Hazelhurst.

Police said they are still investigating to determine a motive and whether the invasions are connected.

“That’s really very scary,” said Cecila Adu-Gyamfi, a neighbor. “Because it’s a very quiet neighborhood.”

“I’m shocked,” said Ted Treinor. “This is a fairly quiet neighborhood. A lot of older people live on this street. Like I said it’s fairly quiet.”
Lest we forget the recent arrest of an Indianapolis police officer for robbing illegal immigrants after pulling them over for alleged traffic violations. Illegal immigrants are particularly vulnerable to unlawful enty into their homes by police, real or fake, because they are less likely to report the crime.

Or consider this story about sneak and peek searches being carried out increasingly by federal law enforcement officials:

A special type of government search warrant that allows authorities to search homes without informing the owner for months is becoming more common, Target 7 has learned.

Imagine someone walking through your neighborhood, coming into your home and rifling through your intimate belongings.

“(They) search through your home, your dresser drawers, your computer files,” Peter Simonson, with ACLU New Mexico, said.

These search warrants don’t involve knocking on doors or any type of warning at all. Delayed-notice search warrants, or "sneak-and-peek" warrants, allow federal agents to enter your home without telling you they’ve been there until months later.

The warrants have always been around, but their use has spiked since the revamped Patriot Act in 2005. The number of delayed-notice search warrants spiked nationally from nearly 700 in fiscal year 2007 to close to 2,000 in 2009.

Upwards of 200 approved during that same three-year stretch came out of the 10th Circuit Court, which covers a handful of states including New Mexico. The majority of those delayed search warrants aren’t even for terrorism-related cases. According to the U.S. Department of Justice’s figures, the majority of the warrants are for drug cases.

“While billed as an anti-terror tool, (a sneak-and-peek warrant) had no requirements on it that it precluded it from being used in standard criminal investigations,” Simonson said.

The warrants are so secret that the New Mexico U.S. Attorney’s Office wouldn’t go on record with Target 7 about them.

The ACLU said it expects delayed-notice warrant numbers to keep growing each year as long as certain parts of the Patriot Act remain on the books.


leland35 said...

State Senatory Mike Young would be well advised not to have an ill-informed knee-jerk reaction to good law/policy.

The Supremes took time and heard evidence in reaching their decision, yet knee-jerk Young reaches his in a hair-trigger moment!

The Supremes are correct: Rule by law is better than "might makes right." -And interpretation of law takes time and thought, far more than a split second it takes to pull a trigger.

In a prior thread AI informed of how a good police officer was murdered by a deranged fat hot-head, who tried to claim "unlawful entry."

Does it make sense to have a good man dead or to have the facts well-thought out and ruled upon without injury or death?

Rule of law is better than "might makes right." Consider that.

Cato said...

The entire purpose of the Common Law was that not every kernel of wisdom contained in it needed to be reduced to statute. Kings or Parliaments would be forever trying to encapsulate right and wrong, and the written form would never exactly capture what we all know in our hearts to be true, opening the door to lawyering mendacities of acting within the letter of the law, yet still acting outside the true law.

The Common Law contains mores and ethics that preceded History and were the most easily understood and universally agreed distillations of right and wrong.

If our courts are acting so contrary to the social conventions that were known even unto to the Egyptians, Minoans and Norse, then they must be considered enemies of the People.

It is considered a profound moral failing when a child needs to be told to refrain from something that any person with basic human decency ought know.

The Supreme Court ought be roundly embarrassed by the Legislature having to give it an explicit order regarding rules of governance that have held for millennia.

Kilroy said...

Barnes case has been amazing misinterpreted by the media. And what "long-followed common law rule in Indiana that a homeowner had a right to reasonably resist an unlawful entry of a police officer into his home" are you speaking of? You've never been able to physically batter an officer just because he doesn't have the right to be in your home just like you don't have the right to physically batter anyone else just because they are in your home.

Paul K. Ogden said...


There is already a statute on point that allows homeowners to resist illegal entry into the home, IC 35-41-3-2. (A person asked about it in one of the comments which prompted me to look it up.) There is no exception in the law for police officers. I don't know why the Court overlooked the statute in its ruling. These things happen though.

Paul K. Ogden said...


You're allowed to use "reasonable force" to repel a police officer. You use the word "battery" as if it means some severe pummeling. That's not what the word "battery" means though. It means any offensive, unwanted touching. Any resistance to a polilce officer unlawfully entering is going to involve a battery. The law is a defense to battery.

leland35 said...

Paul, the Barnes matter is not one which one can reasonably interpret as contrary to IC 35-41-3-2. Again, police in modern times cannot be compared to criminals attacking a person or burglarizing a home. If one believes an entry is "unlawful" there is proper remedy in the court. But to kill as Fred Sanders did is wrong. One cannot declare an entry as "unlawful" and pull a trigger to enforce their declaration. The determination must be made with careful legal thought, thus the Supremes are correct in their ruling.

Cato said...

"police in modern times cannot be compared to criminals attacking a person or burglarizing a home."


Cops blow away people, all the time, in their own homes. Cops are at the top of the list any sane person would want to exclude from one's house.


All people a man does not want in my house are on the same footing and deserve the same treatment.

The citizen is sovereign, and his house is his dominion. We all used to know this. A disgusting anti-freedom mentality is sweeping across America.

I see people showing receipts as they leave stores to prove they bought what they just bought. It's quite scary.

"If one believes an entry is "unlawful" there is proper remedy in the court."

Wrong. A court is rarely a "proper" remedy. Courts only try to approximate proper remedies. There is no remedy a court can give that will go back in time and throw a cop out of a house at a given time. If a cop is trying to gain entry, and a citizen does not wish to grant it, the only proper remedy is for the cop to relent and remove himself. Anything but the cop's compliance at the scene is an imperfect remedy, as the citizen will suffer the violation for the rest of his life.

"But to kill as Fred Sanders did is wrong. One cannot declare an entry as "unlawful" and pull a trigger to enforce their declaration."

Did the cops leave their guns and batons outside Sanders' home when they entered? Did the cops enter Sanders' home with any means to do him harm? Armed and uninvited is not a proper means of entering a man's house.

Always take caution not to back a man into a corner, especially on his own land. Freemen have no duty to retreat. A man's home is his castle, thus the "Castle Doctrine." Our servants do have such a duty. We pay them to protect and serve us, not to try to assert superiority over us. If a cop is refused, let him withdraw so that *he* can go to court and seek a proper means of proving his legal right to enter.

This is a zero-sum game. Someone has to back down. We the People are demanding that the government backs down from us, not we from it. If you keep pressing, you will destroy the country, as so many of us do not consent to the new system of tyranny you're trying to impose.

Leland, you're playing with dynamite, and you don't seem to know how seriously you've imperiled the Union with these endless encroachments. I only hope you love the country more than you love the police and back down from these attacks on our ancient and cherished liberties.

Karl Born said...

Leland35, on what basis do you claim that IC 35-41-3-2 cannot reasonably be interpreted as applying to defense against unconstitutional home invasions by police? The language could not be clearer. The only ambiguity that I initially thought there was was in the meaning of "person" -- maybe the Court thought that a police officer was not what the legislature meant by the term, even though that would be difficult to believe. However, Title 35 actually defines the word "person," and it includes all human beings who have been born, as one would have expected. The meaning is clear, and the Court has no business criminalizing innocent behavior, without the consent of the legislature, and contrary to the unambiguous acts of the legislature.

Besides, unless doing things that are against the law -- against the state and federal constitutions, even -- are a part of the official duties of police officers, it is not even consistent with the definitions of the offenses in question for a person to be convicted of battery of a police officer or resisting law enforcement, when it is clear that the officer was violating the law, even without IC 35-41-3-2.