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Justices asked to rehear Barnes

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Indiana Lawyer Rehearing

The Indiana Supreme Court is being asked to revisit a ruling on a person’s right to resist illegal law enforcement entry into one’s home, and 71 state legislators have signed an amicus curiae brief asking the justices to narrow their decision.

Vanderburgh County public defender Erin Berger filed a rehearing petition June 9 with the state’s highest court, asking it to reconsider the 3-2 ruling it made May 12 in Richard Barnes v. State, No. 82S05-1007-CR-343. The brief points to the U.S. Constitution’s protections in the Fourth Amendment on search and seizure as well as the Fifth and 14th amendments and federal caselaw on due process and ex post facto violations. Berger also argues that Barnes runs afoul of the First Amendment and Indiana Constitution protecting free speech.

The Indiana attorney general’s office has until June 27 to respond. Attorney General Greg Zoeller has publicly stated his support for a rehearing because of concerns that the ruling is too broad.

The court on June 10 allowed lawmakers to file their amicus brief, which Indiana University School of Law – Indianapolis professor Joel M. Schumm filed on behalf of 40 senators and 31 representatives. The brief focuses on two areas: Indiana’s self-defense statute and the underlying public policy concerns.

Lawmakers argue the state’s self-defense statute has allowed residents to use “reasonable” force if the person “reasonably believes” that force is necessary to prevent or end unlawful entry into his or her home. In 2006, the statute was broadened to say that residents don’t have a duty to retreat when faced with unlawful entry.

That statute, Indiana Code 35-41-3-2, is one that Berger does not discuss in her rehearing petition, and it remains to be seen if the AG’s response will address it.

The legislators’ brief also points to concerns about how this ruling impacts cases of police impersonators trying to gain entry into homes. The brief cites examples from Pennsylvania, Alabama, and Los Angeles in which someone falsely posed as a police officer to gain entry into a home and commit a crime.

“These headlines need not be replicated in Indiana. Rather, granting rehearing is appropriate to narrow this Court’s holding and apprise our citizens that they retain the venerable right to reasonably resist unlawful entry into their homes by police,” the brief states.

A second amicus brief was filed June 13 on behalf of five others – John Wesley Hall, an Arkansas lawyer and past president of the National Association of Criminal Defense Lawyers who writes a blog about the 4th Amendment; New York criminal law professor K. Babe Howell; professor Eric Rasmusen of Indiana University’s Kelley School of Business; and professor Steve Russell at Indiana University Maurer School of Law.

Rehearing "No right to resist" IL June 8-21, 2011

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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