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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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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