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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues