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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. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  2. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

  3. So this firebrand GOP Gov was set free by a "unanimous Supreme Court" , a court which is divided, even bitterly, on every culture war issue. WHAT A RESOUNDING SLAP in the Virginia Court's face! How bad must it have been. And all the journalists, lap dogs of the status quo they are, can do is howl that others cannot be railroaded like McDonald now??? Cannot reflect upon the ruining of Winston and Julia's life and love? (Oh I forget, the fiction at this Ministry of Truth is that courts can never err, and when they do, and do greatly, as here, why then it must be ignored, since it does not compute.)

  4. My daughter is a addict and my grandson was taken by DCS and while in hospital for overdose my daughter was told to sign papers from DCS giving up her parental rights of my grandson to the biological father's mom and step-dad. These people are not the best to care for him and I was never called or even given the chance to take him, but my daughter had given me guardianship but we never went to court to finalize the papers. Please I have lost my daughter and I dont want to lose my grandson as well. I hope and look forward to speaking with you God Bless and Thank You for all of your help

  5. To Bob- Goooooood, I'm glad you feel that way! He's alive and happy and thriving and out and I'm his woman and we live in West Palm Beach Florida, where his parents have a sprawling estate on an exclusive golf course......scum bag

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