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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. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  2. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

  3. Science is showing us the root of addiction is the lack of connection (with people). Criminalizing people who are lonely is a gross misinterpretation of what data is revealing and the approach we must take to combat mental health. Harsher crimes from drug dealers? where there is a demand there is a market, so make it legal and encourage these citizens to be functioning members of a society with competitive market opportunities. Legalize are "drugs" and quit wasting tax payer dollars on frivolous incarceration. The system is destroying lives and doing it in the name of privatized profits. To demonize loneliness and destroy lives in the land of opportunity is not freedom.

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