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Court addresses Barnes retroactivity

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The Indiana Court of Appeals added a new dimension to the debate about police entry and reasonable resistance, with a three-judge panel for the first time bringing up the issue of retroactivity as applied to the state justices’ controversial ruling in Barnes v. State.

With a ruling Wednesday in Danielle Garrett v. State of Indiana, No. 49A02-1101-CR-1, the intermediate appellate court affirmed an Indianapolis woman’s convictions of resisting law enforcement and battery on a police officer and refused an invitation to revisit the Barnes case that the Indiana Supreme Court ruled on in May and clarified in September on rehearing.

In this Marion County case, an Indianapolis Metropolitan Police Department officer arrested Danielle Garrett in August 2010 after responding to a report of domestic violence at a home. The officer arrived and saw Garrett angrily walking from a nearby intersection toward the house where the report came from, muttering under her breath. She was identified as one of the individuals involved in the disturbance.

The uniformed officer told Garrett to stay outside, but she ignored the command and walked inside the house. The officer believed she was going to start a fight, and so he followed Garrett inside after observing her yelling and screaming at family members inside and refusing to leave. The officer grabbed her by the wrist and told her to go outside, but Garrett pulled away and went farther into the house. Additional officers arrived and she started yelling more loudly as they tried to calm her, and when one officer tried to place her in handcuffs, Garrett took an aggressive fighting stance and then struggled with the officer and kneed him in the upper thigh.

The officers eventually subdued and put restraints on Garrett, and that led to charges of resisting law enforcement, battery on an officer and disorderly conduct. She was found guilty of battery on an officer and resisting law enforcement at a bench trial in December 2010.

Garrett appealed, arguing that evidence doesn’t support her conviction because she has a right to reasonably resist the police because they entered her home without a warrant and without any other justifiable reason for entry. Specifically, Garrett took issue with the Barnes ruling where the Indiana Supreme Court held “there is no right to reasonably resist unlawful entry by police officers.” She also argued that Barnes should not be applied retroactively to her case – she filed her appellant’s brief at the time a rehearing petition before the Indiana Supreme Court was pending following the original May 12 ruling.

The Court of Appeals found the entry was justified because of Garrett’s conduct and the uncertain nature of what was happening, as well as how she at one point asked police why they were talking to her inside the home instead of investigating others – something the appellate panel described as “clearly acquiesced” to them being there to investigate someone she believed was in the bathroom. Her resistance is separate from the issue of entry, the court wrote, and so her claims are without merit because that behavior wasn’t reasonable even if the police entry wasn’t lawful.

“Given that Garrett has failed to establish an unlawful entry and our conclusion that her resistance was not reasonable, the rule announced in Barnes is not applicable to the present case,” Judge Ezra Friedlander wrote. “Notwithstanding, the Barnes decision does not present an ex post facto problem in this case. It has long been established that battery against a police officer is not reasonable resistance under the common law.”

Citing Robinson v. State, 814 N.E.2d 704 (Ind. Ct. App. 2004), Friedlander noted that “even prior to Barnes, Garrett’s conduct in forcefully combating the officer(s) after she acquiesced in their presence in her home was unlawful.”

In a footnote, Friedlander wrote that the panel declined Garrett’s request to reconsider the Supreme Court’s holding in Barnes. Judges Carr Darden and Nancy Vaidik agreed in affirming the ruling by Marion Superior Judge Rebekah Pierson-Treacy and Magistrate Steven Rubick.

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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