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Thursday, September 22, 2011
Varvel On Barnes v. State
Star editorial cartoonist Gary Varvel hits it out of the park today with his take on the Indiana Supreme Court's decision in Barnes v. State.
The cartoon actually brings up one of the problems with the decision: most people won't know that the law criminalizes resistance. Thus, a policeman who himself makes a mistake (or maybe acts illegally on purpose) can try to provoke the homeowner to push him, after which he can offer not to go after the householder for assault if the householder keeps quiet about what the policeman did.
Agreed, Eric. The AG's press release didn't help things either, suggesting people still had the right to resist illegal entry by the police. As Gary said, how do you resist without laying a hand on the officer?
Eric, police will already try to provoke you. Hold a camera and aim it at the police or some activity happening on a public street. Wait. Soon a cop will be in your face telling you you have no right to do that and to turn it off. If you do not, they will persist. Eventually they will swing at the camera or grab it to try breaking it or knock it to the ground. If you raise a hand to save your camera and in any way make the slightest contact with that hand flying towards your camera, you'll wind up arrested for 'assault.'
Everyone is critical of the court decision, so offer a solution. Citizens should be able to shoot uniformed officers upon entry of their home! Right? Resist, even if you don't independently know the officer is operating on "good faith." Sounds like a worse situation than before. See how easy it is to get an officer to respond to your 911 call when they know they can be assaulted or shot if they accidentally walk in the wrong door. Good Grief!
There was a long-established common law rule, the Constitution and even a state statute that should have appropriately answered the question before the court. It is this court's decision to toss all that aside that has upset the apple cart. You're pointing your finger at the wrong people.
The issue was settled by our General Assembly which decided people had the right to resist, by force, an unlawful entry into their homes. If people didn't like that, they should go to the legislature and get the law changed, not have it changed via judicial fiat.
Mr. Ogden, you still haven't answered my question; you're taking the easy way out. Indiana Law cannot conflict with established precedent like the "good faith doctrine" either. How do you resolve the problem? How can allowing citizens to resist police be good for public safety and health? Either we trust our public servants to try and do the right thing or we don't. We either let them do their job in "good faith" or we choose another road, like anarchy.
Jedna Vira's question is actually a good one now. How should the legislature respond to what Justice David has written? A statehouse legislative subcommittee is working on that right now. I've missed the two hearings. What's happening there?
Anyway, the General Assembly needs to amend the statute to be clear enough so even a judge can't wiggle out of it. I think that will be easy enough in the case of the Castle Doctrine statute. Just add "This statute contains no exception for unlawful entry by government employees, including uniformed policemen in the course of their duty." Perhaps a new statute could also be introduced that says, "The common law defense of reasonable resistance to unlawful entry is hereby restored to where it stood before the May 2011 ruling in Barnes v. Indiana as a statute. The courts may not change this rule."
I'd go further myself, and add protection for citizens defending against illegal police action outside the home too.
Are you talking about the good faith exception to the exclusionary rule? The right to defend does not violate that (and the legislature would be free to close that exception in state cases, if it chose to do so), but it would keep innocent action from being criminalized, and people who have not done anything wrong (other than defend themselves or their homes from someone who *was* breaking the law, if that is wrong at all) from being punished.
The answer you ask for is for the General Assembly -- the only entity that I think could do this successfully -- to instruct the Supreme Court that it has no power to change statutes that it does not like. (It can interpret them and apply the state or federal Constitutions, or any federal law, to them, but the Court did not claim to be doing either of those, in Barnes.)
11 comments:
Varvel absolutely nailed it. I'm sure many people will be printing the cartoon and displaying it prominently in their offices and homes.
The cartoon actually brings up one of the problems with the decision: most people won't know that the law criminalizes resistance. Thus, a policeman who himself makes a mistake (or maybe acts illegally on purpose) can try to provoke the homeowner to push him, after which he can offer not to go after the householder for assault if the householder keeps quiet about what the policeman did.
Agreed, Eric. The AG's press release didn't help things either, suggesting people still had the right to resist illegal entry by the police. As Gary said, how do you resist without laying a hand on the officer?
Eric, police will already try to provoke you. Hold a camera and aim it at the police or some activity happening on a public street. Wait. Soon a cop will be in your face telling you you have no right to do that and to turn it off. If you do not, they will persist. Eventually they will swing at the camera or grab it to try breaking it or knock it to the ground. If you raise a hand to save your camera and in any way make the slightest contact with that hand flying towards your camera, you'll wind up arrested for 'assault.'
Everyone is critical of the court decision, so offer a solution. Citizens should be able to shoot uniformed officers upon entry of their home! Right? Resist, even if you don't independently know the officer is operating on "good faith." Sounds like a worse situation than before. See how easy it is to get an officer to respond to your 911 call when they know they can be assaulted or shot if they accidentally walk in the wrong door. Good Grief!
There was a long-established common law rule, the Constitution and even a state statute that should have appropriately answered the question before the court. It is this court's decision to toss all that aside that has upset the apple cart. You're pointing your finger at the wrong people.
Jedna,
The issue was settled by our General Assembly which decided people had the right to resist, by force, an unlawful entry into their homes. If people didn't like that, they should go to the legislature and get the law changed, not have it changed via judicial fiat.
Mr. Ogden, you still haven't answered my question; you're taking the easy way out. Indiana Law cannot conflict with established precedent like the "good faith doctrine" either. How do you resolve the problem? How can allowing citizens to resist police be good for public safety and health? Either we trust our public servants to try and do the right thing or we don't. We either let them do their job in "good faith" or we choose another road, like anarchy.
Jedna Vira's question is actually a good one now. How should the legislature respond to what Justice David has written? A statehouse legislative subcommittee is working on that right now. I've missed the two hearings. What's happening there?
Anyway, the General Assembly needs to amend the statute to be clear enough so even a judge can't wiggle out of it. I think that will be easy enough in the case of the Castle Doctrine statute. Just add "This statute contains no exception for unlawful entry by government employees, including uniformed policemen in the course of their duty." Perhaps a new statute could also be introduced that says, "The common law defense of reasonable resistance to unlawful entry is hereby restored to where it stood before the May 2011 ruling in Barnes v. Indiana as a statute. The courts may not change this rule."
I'd go further myself, and add protection for citizens defending against illegal police action outside the home too.
Readers may be interested in my fisking of the Supreme Court ruling:
http://rasmusen.org/special/barnes/barnescomment.htm
Jedna,
Are you talking about the good faith exception to the exclusionary rule? The right to defend does not violate that (and the legislature would be free to close that exception in state cases, if it chose to do so), but it would keep innocent action from being criminalized, and people who have not done anything wrong (other than defend themselves or their homes from someone who *was* breaking the law, if that is wrong at all) from being punished.
The answer you ask for is for the General Assembly -- the only entity that I think could do this successfully -- to instruct the Supreme Court that it has no power to change statutes that it does not like. (It can interpret them and apply the state or federal Constitutions, or any federal law, to them, but the Court did not claim to be doing either of those, in Barnes.)
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