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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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