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Justice: Ruling lets government agents enter homes illegally

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Two Indiana Supreme Court justices dissented from their colleagues in a case involving the right to resist unlawful police entry into a home, with one justice writing that he believes the majority is “essentially telling Indiana citizens that government agents may now enter their homes illegally.”

In Richard L. Barnes v. State of Indiana, No. 82S05-1007-CR-343, Richard Barnes appealed his misdemeanor convictions of battery on a law enforcement officer, resisting law enforcement, and disorderly conduct. Police responded to a 911 call by Barnes’ wife concerning domestic violence. When police arrived, Barnes was in the parking lot, but then went back into his apartment to retrieve more items because he was going to leave the apartment he shared with his wife.

When police tried to enter, Barnes told them they couldn’t and blocked them. When an officer attempted to come inside, Barnes shoved him against the wall and a struggle ensued.

Barnes appealed, challenging the trial court’s refusal to give his tendered jury instruction on the right of a citizen to reasonably resist unlawful entry into the citizen’s home, and the sufficiency of the evidence. The Court of Appeals ordered a new trial on the battery and resisting charges.

Chief Justice Randall T. Shepard, and Justices Steven David and Frank Sullivan agreed with the trial court’s decision to not offer the instruction. This is the first time that the Supreme Court has been faced with whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers.

After examining the English common-law right to resist unlawful police action, and previous U.S. Supreme Court cases on the matter, the majority concluded the right to resist an unlawful police entry into a home is against public policy and incompatible with modern Fourth Amendment jurisprudence.

“Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action,” wrote Justice David, citing bail and the exclusionary rule as examples. “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.”

The majority held that in Indiana, the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law. Justices Brent Dickson and Robert Rucker dissented in separate opinions. Justice Dickson wrote he would have preferred the majority to have taken a more narrow approach by “construing the right to resist unlawful police entry, which extends only to reasonable resistance, by deeming unreasonable a person’s resistance to police entry in the course of investigating reports of domestic violence.  ... Such a more cautious revision of the common law would have, in cases not involving domestic violence, left in place the historic right of people to reasonably resist unlawful police entry in their dwellings.”

In his dissent, Justice Rucker felt the majority’s ruling was far too broad and would allow the government to enter homes illegally, without the necessity of a warrant, consent, or exigent circumstance. He also said the right to resist unlawful entry into the home rests on the Fourth Amendment.

“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. 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,” wrote Justice Rucker.

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  • From Rucker's Dissent
    William Pitt, Earl of Chatham, on the occasion of a debate in Parliament:
    The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!
  • next headline should read "3 former judges deported"!
    We the People are the rightful masters of both Congress and the Courts--not to overthrow the Constitution, but to overthrow the men who pervert the Constitution."
    Abraham Lincoln

    How these three judges could be so far off is mind-blowing, its as if they had never even studied law, or ever even seen an episode of schoolhouse rock. It's disgusting and they should be ashamed!
  • Reply to 3 Judicial Idiots
    Unfortunately Bill, the three judges who ruled were appointed by Republican Govs and one by Bayh, obviously not liberals. I'm a Conservative Republican and am totally disgusted by this.
  • burglary/ home invasion specialists like this case!
    There are a lot of incidents of burglars committing home invasions disguised as police. That is just one empirical example of why this right should not be attacked by judges. The people need to be secure in their right to defend themselves and their property. This search query will yield many examples

    http://search.yahoo.com/search;_ylt=A0oG7n7mgdFNjHcA07RXNyoA;_ylc=X1MDUCMyMTQyMzU3MDg5BF9yAzIEYW8DMQRjc3JjcHZpZANGZEkxekVvRzd2NnhtUXJVVGMyRHBBWFJUTkFSamszUmdlWUFBaHp0BGZyA2Noci15aWU4BGZyMgNzYnRuBG5fZ3BzAzIEb3JpZ2luA3NycARxdWVyeQNwb2xpY2UgaW52YWRlIGhvbWUEc2FvAzEEdnRlc3RpZANWSVAwNjg-?p=police+invade+home&fr2=sb-top&fr=chr-yie8&type_param=
  • statism in action
    She admitted he had not harmed her. There was not even a reasonable suspicion of a crime. No warrant, no probable cause, no suspicion, and a lawful occupant refused the police entry, rightly so and the overweening overzealous cop beat him down for it. This is so wrong. The police have all their guns and swat teams to protect them. What protects the individual from the police? Not only a paper document but the righteous fear that some people may capably and lawfully defend themselves.

    I prophesy that the NRA and liberterian right will be just as outraged at this piece of trash as the liberal left will be. This is police statism in action here folks.

    Why not ship him off to Gitmo!
  • speak--- redress...
    Eternal vigilance is the price of liberty. Dont throw up your hands. Get moving on letting your public servants know that this is unacceptable.
  • our right to self defense is not granted by any court nor may it be "abrogated"
    King John is laughing at us from his place in hell.

    This was among the rights of Englishmen and it devolved upon us. It is a crucial freedom, the freedom to defend oneself (as always, with reasonable force) against violation of the rights of person or property whether done by private or public agents.

    This little piece of judicial tyrrany repudiates a very rarely used but nonetheless crtically important liberty.
    I can hardly believe this piece of awful judicial activism is "emanating" from my beloved home state of Indiana.

    I have the highest regard for the dissenting judge. I am so thankful that someone at the high and "august" level of judicial legislator at least has some concern for liberty.

    Keep in mind that rights dont go away just because courts say they do. Our rights are God-given and this repugnant travesty will be rectified.
  • entry
    I don't like the ruling, I feel that removing our 4th Amendment rights the judges " ACTED STUPIDLY " and should be removed .
  • entry to home
    From what I read the police were responding to " the Wife's 911 call " now if she had told them they couldn't come in then they should not of entered. but since she had made the call his trying to keep them out was wrong in this case . the police need to make sure she was safe .
    • rights?
      rights in america where are they? the people of indiana need to vote for the change\amendment for the bill of rights not three justices we need our 4th amendent Right not a privlage just cuase someone wants to come in ur home? u have to let them in that crazy our us constiution was made for a reason and was well put togeather by our founding fathers where are our rights hoosiers need to appeal asap
    • 3 judicial IDIOTS Need to educate themselves
      The 3 Judges who decided that the US Constitution 4th Amendment along with other Amendments NO LONGER APPLY to US CITIZENS are COMPLETE IDIOTS and really need to be disrobed and sent back to remedial US history class and LEARN about WHAT,WHY,How the Constitution of the USA is supposed to work.

      Also, the Constitution is a DEAD Document, it is what it is,means what it means...this Liberal 'modification' and trying to make the Constitution a 'living document' is an affront to what it stands for and WHY it was drawn up in the first place...THROW those Judges OUT...send them to China, they can practice their 'Big Brother' law there..
      • The end of Individual rights is here.
        We're throwing away our hard-won civil liberties with both hands. It's the rise of the police state, and the death of the republic. This is only one of the steps that lead us away from freedom, but it's a path down which we travel further every day.

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        1. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

        2. A high ranking bureaucrat with Ind sup court is heading up an organization celebrating the formal N word!!! She must resign and denounce! http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

        3. ND2019, don't try to confuse the Left with facts. Their ideologies trump facts, trump due process, trump court rules, even trump federal statutes. I hold the proof if interested. Facts matter only to those who are not on an agenda-first mission.

        4. OK so I'll make this as short as I can. I got a call that my daughter was smoking in the bathroom only her and one other girl was questioned mind you four others left before them anyways they proceeded to interrogate my daughter about smoking and all this time I nor my parents got a phone call,they proceeded to go through her belongings and also pretty much striped searched my daughter including from what my mother said they looked at her Brest without my consent. I am furious also a couple months ago my son hurt his foot and I was never called and it got worse during the day but the way some of the teachers have been treating my kids they are not comfortable going to them because they feel like they are mean or don't care. This is unacceptable in my mind i should be able to send my kids to school without worry but now I worry how the adults there are treating them. I have a lot more but I wanted to know do I have any attempt at a lawsuit because like I said there is more that's just some of what my kids are going through. Please respond. Sincerely concerned single parent

        5. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

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