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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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  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. 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.

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