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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.