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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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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