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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. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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