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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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