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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.•

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  • 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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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