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.