Lawmakers examine issues raised in Barnes

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As the Indiana Supreme Court decides whether it will revisit a controversial ruling that’s generated public protest since it came down in May, legislators are discussing what they might do to reduce the impact of the justices’ ruling on resisting police entry into one’s home.

One clear message can be found at this point in that legislative analysis: no one knows the scope of the justices’ decision in Barnes v. State, No. 82S05-1007-CR-343.

The court’s 3-2 ruling upholding a conviction on a resisting law enforcement charge met widespread disapproval across Indiana. Critics argue it violates the Fourth Amendment against illegal searches and centuries of common law precedent. The ruling specifically targets the common law right to resist, abrogating it completely.

This was the fourth decision that Justice Steven David wrote for the court since he joined the appellate bench, and he was joined in the majority by Chief Justice Randall T. Shepard and Justice Frank Sullivan. Justices Brent Dickson and Robert Rucker dissented.

The Indiana attorney general’s office filed a seven-page brief June 27, noting the battery conviction should be upheld but the justices should make a narrower holding on a person’s right to reasonably resist unlawful policy entries. That brief followed a rehearing petition filed earlier in June by Evansville attorney Erin Berger who argued the court should reach a different decision based on constitutional principles. Seventy-one legislators also joined together in a brief urging rehearing, while a group of professors have done the same in urging the court to rehear the case.

No more briefs are being accepted, and the court is under no timeline to decide whether it will rehear the case.

But as the legal arguments are being weighed, the Barnes legislative subcommittee is moving forward to discuss possible statutory changes regardless of what action the court takes.

The first meeting was June 29.

Sen. Brent Steele, R-Bedford, an attorney who chairs the four-person committee, began the meeting by saying that this case has resulted in more calls from lawyers and residents statewide than he’s had since the daylight savings time issue. Steele said he isn’t sure if the panel should wait on discussing and deciding this issue until the Supreme Court determines whether it will rehear the case.

Steele Steele

“I think it’s incumbent upon us to do something legislatively,” he said. “How often have lawyers seen the court say that the Legislature didn’t address something? We run the risk of looking like we’ve abrogated our duties and that we decided not to deal with it immediately.”

Aside from Steele, Sen. Tim Lanane, D-Anderson, and Rep. Eric Turner, R-Cicero, were at the first meeting. Rep. Linda Lawson, D-Hammond, did not attend. They passed out briefs filed in the case along with the justices’ ruling for everyone to review.

Lanane said he sees the point the majority was making – that any resistance can lead to an escalation of violence – and he wondered what the result might be if any form of resistance is allowed by residents.

turner-eric-mug.jpg Turner

Lt. Mark Carnell, legal counsel for the Indiana State Police, said the ruling has had no impact on the agency’s procedures and police don’t see it as giving officers any greater right to enter homes. Sen. Mike Young, R-Indianapolis, who is not a member of the subcommittee but attended the meeting to criticize the ruling, said he’d prefer police to hold off and wait when a situation is unclear.

Although the 11-page ruling states the court was deciding “the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers,” Steele and others question whether it also impacts Indiana statute addressing this issue. The 2006 “castle doctrine” broadened residents’ right to protect themselves from unlawful entries into their homes.

lanane-tim-mug.jpg Lanane

Legislative Services Agency attorney Andrew Hedges told the subcommittee members that it is not clear whether the ruling could be interpreted to impact only common law or the statues, as well. He described the structure of the opinion as a possible “drafting error” because it switches from addressing the common-law aspect to even broader wording about the general right to resist police entry, and that’s unclear about the scope of the ruling. Hedges said the court could have included a footnote addressing the statute, but they didn’t, leaving court watchers wondering whether the justices forgot about that statutory impact or if they ignored it to only address the common-law question. He questioned Justice David’s use of “in sum” when issuing the holding, and whether that means the holding is limited to common law or also abrogates any statutory right to resist.

Steele sees that as a problem that needs legislative attention.

“I see this as two trains headed toward each other on the same track that will collide someday,” he said, in reference to the Supreme Court ruling and the self-defense statute revised five years ago.

A date for the second meeting hasn’t been set. This subcommittee’s role is to recommend any legislative changes to the General Assembly when it reconvenes for the 2012 legislative session.•


  • A Rational Approach
    Since one of the reasons stated in the Barnes decision for it's conclusion is something to the effect that someone like Barnes has the option to file a civil lawsuit against the police instead of physically resist, then it is appropriate for the legislature to eliminate all of the gotcha games advantages, in favor of law enforcement, that impede the resolution of tort claims on their merits. One place to start would be to look at the Federal Tort Claim system, improve upon it, establish command responsibility, and adapt it to State and local law enforcement realities. I believe that legislative approach would satisfy many protesters and encourage law enforcement agencies to put more effort and resources into training their personnel for their difficult jobs.

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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