Friday, May 20, 2011

Zoeller Asks For Rehearing On Barnes v. State

Attorney General Greg Zoeller at first seemed supportive of the Indiana Supreme Court's 3-2 decision in Barnes v. State abrogating the long-recognized common law rule, bolstered by the 4th Amendment, that a person had a right to reasonably resist an unlawful entry into their home by police. In the wake of the unprecedented nationwide criticism of the decision, Zoeller is now singing a different tune. He will support the defendant's counsel's petition for a rehearing of the case in hope of narrowing the court's ruling and avoiding an appeal of the controversial decision to the U.S. Supreme Court. From the AP:

Indiana's attorney general says he supports asking the state Supreme Court to revisit its recent ruling that found people don't have the right to resist police officers who enter their homes illegally.

Attorney General Greg Zoeller said Friday that a rehearing in the case would "allow for a more narrow ruling that would continue to recognize the individual right of reasonable resistance to unlawful entry."

Last week's state Supreme Court decision upholding an Evansville man's convictions for battery on a police officer and resisting law enforcement outraged some Indiana residents and lawmakers.

Although his office represents the prosecution in criminal appeals, Zoeller says he'll support a rehearing in this "unusual case" if the Evansville man asks for one. The defendant has until June 13 to seek a rehearing.
I predict the Supreme Court will grant a rehearing in the case, and I would not be at all surprised to see at least one of the justices, Chief Justice Randall Shepard, to join the two dissenting judges, Justices Dickson and Rucker, in refashioning a narrower ruling. Justice Shepard had been absent from the court for a few weeks prior to the decision's release due to a pinched nerve.

The decision has become a political headache for Mitch Daniels' potential presidential bid because the justice who authored the controversial opinion, Steven David, is his first and only choice to sit on the high court. The choice of David had already drawn criticism from some corners because of his views opposing the U.S. military's handling of Gitmo detainees where he had been assigned to represent enemy combatants accused of plotting terrorist attacks against the U.S. and its soldiers as a JAG officer.


Paul K. Ogden said...

I still contend the Supreme Court flat out missed the Indiana statute adopted in 1976 that allowed citizens to use force to prevent illegal entries into one home, a statute which doesn't exclude police officers. All that talk in the decision about the 4th Amendment and common law doesn't matter when there is a statute on point. The state can always give you more rights than what exists under the constitution.

The facts too seemed to justify the police entry into the home. I'm not sure why the court felt it necessary to throw out a long-standing legal principle.

Eric Rasmusen said...

I'm planning on submitting an amicus brief on Barnes by the deadline of June 13. This is intended as a brief of scholars, but comment is welcomed from anyone, and we still have not decided on a counsel of record, so anyone with an Indiana law license who wants to help, please let me know. The issue of statutory justification of self-defense is the most important, but I hear that another amicus brief is being prepared on that, so this amicus will deal with other issues.

Below, I give the main argument. The draft/notes (preliminary, ) and other relevant documents may be found at .

Eric Rasmusen


Mr. Barnes was convicted of the Class A misdemeanors of battery on a law enforcement officer and resisting law enforcement, as well as another charge not relevant here. Barnes argues that the trial court’s failure to instruct the jury that there exists a right to reasonably resist unlawful entry by police officers is reversible error.

The Indiana Supreme Court said, “Now this Court is faced for the first time with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers. We conclude that public policy disfavors any such right.”

This is an important question, and we believe that the Court needs fuller briefing on it than has occurred. We will not treat of the important issue of whether Indiana statutes justify Barnes’s desired jury instruction aside from any common-law right to resistance. Instead, this brief is limited to advising the Court on three other points that we fear may otherwise receive insufficient attention. First, does public policy really disfavor the right to resist unlawful entry? Second, is the Court’s ability to decide the common-law rule on public-policy grounds eliminated by Indiana’s common-law incorporation statute? Third, if the Court does recognize a general right to resist unlawful police action, should an exception be made to criminalize resistance when the police excuse for unlawful behavior is that it is intended to prevent domestic violence?

We will argue that public policy should encourage rather than discourage citizens to resist unlawful police actions, because the consequences to society of police violation of civil rights are worse than the harm to the police from citizen resistance. Not only is punishing citizens for protecting their rights against violation by the state unjust, but the alternative remedy of civil suits for money damages is insufficient deterrence for state oppression. We will argue that the common law has long given citizens the the right to resist illegal state action, and that even if the Court decides that such resistance causes more trouble than harm nowadays, Indiana statutory law forbids the Court to change public policy in this area. And we will argue that although in domestic violence cases the law will often permit the police to act more flexibly than in other situations, when the police do act illegally they should not be able to excuse their actions merely because the context is that of domestic violence.