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Justices rule: No right to resist

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The Indiana Supreme Court caught many people off guard when it abolished the common law right of citizens to reasonably resist police from entering their homes, no matter the situation and regardless of whether the entry is legal.

The holding in Richard L. Barnes v. State of Indiana, No. 82S05-1007-CR-343, reaches a result no Indiana appeals court has come to in 37 years of examining this issue. But this outcome has been building for over a decade as caselaw has evolved.

The May 12 decision that divided the justices stems from a Vanderburgh Superior case where police responded to a potential domestic disturbance. It is part of a broader debate about the balance between police power and private individuals’ rights to defend themselves and be secure in their homes.

Up until now, Indiana caselaw has gradually fine-tuned that right to resist, but rulings have narrowed the scope to public places, situations where officers are legally entering a home, and whether a person’s resistance is determined “reasonable.” With the Barnes decision, the court completely abolished the common law right to resist law enforcement in any situation.

Two of the state’s justices said the broad holding goes too far and infringes on the Fourth Amendment. Members of the state’s legal community and the general public have raised similar concerns about the scope of this ruling and whether it was necessary.

“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,” Justice Robert Rucker wrote in a dissent. “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.”

Police responded to a 911 call by Richard Barnes’ wife concerning domestic violence. Barnes was in the parking lot when officers arrived, but he 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 was charged and convicted on misdemeanor charges of battery on a law enforcement officer, resisting law enforcement, and disorderly conduct. The verdict came following the trial court’s refusal to offer a jury instruction on the right of a citizen to reasonably resist unlawful entry into one’s home.

The Court of Appeals decided the case in April 2010, reversing all three convictions and remanding for a new trial on the resisting law enforcement and battery on an officer charges because of the jury instruction. They determined a jury should determine what might be “reasonable” when considering that resistance, following precedent on the issue that’s been evolving since 1974.

Williams v. State in 1974 upheld the right to resist in public places but not with force such as gunfire.

Fields v. State in 1978 said one can’t forcefully resist in public but limited the holding to that case and didn’t address police excessive force or unlawful arrest and entry.

Casselman v. State in 1985 recognized a trend in abolishing the common law right but upheld that right to reasonably resist unlawful entries into one’s home for civil arrests.

Adkisson v. State in 2000 applied the Casselman ruling to criminal arrests.

S.E. v. State in February 2001 upheld the precedent.

Alspach v. State in September 2001 followed past precedent in upholding a common law right to reasonably resist law enforcement in one’s home but determined that exigent circumstances must come into play in determining the entry’s legality.

Robinson v. State in 2004 upheld the right to reasonably resist but held that doesn’t include battery on an officer. The court left it up to a jury to determine the line between reasonable resistance or battery on an officer conducting lawful official duty.

The justices heard arguments at Valparaiso University School of Law in November to decide if they’d take the case, and Justice Frank Sullivan said the court was in a difficult position.

“You’ve asked us to take this case, and so if we take it on the limited terms in which you’ve argued it, and we ratify a proposition that’s been enunciated by the Court of Appeals that we’ve never ratified before … you put us in a position of making a declaration on this policy we’ve never made before.”

Justice Sullivan noted that he and Chief Justice Shepard in 2001 had voted to grant transfer on Alspach to address this topic specifically, but that didn’t happen and the scope of the common law right has remained untouched until now.

The deputy attorney general on the case suggested one solution might be for the justices “to abrogate the entire lot of ’em” and entirely remove the right to resist using the rationale that Indiana courts have eroded the right to resist over the years.

Six months later, Justice Steven David wrote for the majority in Barnes that included Chief Justice Randall Shepard and held the common law right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law. The majority examined English common law dating back to the Magna Carta and previous U.S. Supreme Court precedent on this, and it found the right goes against public policy and is incompatible with modern Fourth Amendment jurisprudence. The justices concluded that allowing resistance unnecessarily escalates the level of violence and risk of injuries without preventing the arrest, and so an aggrieved arrestee can use the civil court process for redress.

Dissenting, Justice Brent 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.”

Justice Rucker felt the majority’s ruling was far too broad and allows 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.

Evansville lawyer Erin Berger has told Indiana Lawyer she plans to file a rehearing petition with the Indiana Supreme Court by the June 13 deadline, and state Attorney General Greg Zoeller said he would support a rehearing request for a narrower holding. Berger is also prepared to take the case to the U.S. Supreme Court.•

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

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