Thursday, January 19, 2012

Senate Law Intended to Close 4th Amendment Conundrum May Create More Problems

Last year, the Indiana Supreme Court reached a decision on Barnes v. Indiana that set liberty-minded Hoosiers into a tailspin.  It essentially said that people don't have the right to resist the unlawful entry of police officers into their homes.

Senate Bill 1 Author
Sen. Mike Young, R-Indianapolis
The knee jerk Indiana Senate has been at work to try to set the decision right by passing a law out of committee that gives people limited rights to resist law enforcement from trying to enter your home without a warrant.

The question is...would the law even apply to the Barnes v. Indiana situation?   It appears that Senate Bill 1, the Indiana law intended to fix the issue raised in that Supreme Court case, also is maybe a bit problematic.

Senator Mike Young, who authored the bill, wrote it in such a way that a home owner would have the right to resist an unlawful entry of an officer in limited cases.  Key under the bill is the identification of the person trying to gain entry.  If a homeowner does not know it's an officer, then the bill gives them the right to use reasonable force, including physical force, to resist the law enforcement officer's unlawful entry into the home.  If a person knows it is a police officer, then you can use reasonable force to keep them out of the home but not physical force.

The bill, however, immediately sets out the following situations where one may not resist:

1.  An investigation of suspected domestic or family violence (as defined in Indiana Code)
2.  The entry of a dwelling by a law enforcement officer who has a reasonable belief that a person inside the dwelling has been or is at risk of physical harm.
3.  An entry into a residence by invitation of at least one (1) adult resident, unless one (1) ore more other adult residents.
Also included are provisions for an officer entering a dwelling in "hot pursuit" or an officer entering to catch an escaping criminal, or with a warrant.

Looking at the facts of Barnes v. Indiana, I'm not sure the new law just passed out of committee would apply.

Let me add in here that I am just a teacher; I am not a lawyer.

In Barnes v. Indiana, the officer responding to an incident was dispatched on a 911 call that was classified as a domestic violence call.  That makes it easy to think that the officer might be in that frame of mind going in.

Upon arriving on the scene, the first responding officer found the husband, Richard Barnes and Mary Barnes in at minimum a major disagreement.  Richard Barnes was getting his things and in an agitated mood and so was his wife Mary.  It's hard to determine if the officer could have determined whether or not a person was at risk of harm, but it's also easy to see how they could.

I just don't think Senate Bill 1 would have helped Mr. Barnes be justified in keeping the officer out of his home.  I don't think it touches, what I consider, the heart of the poor Supreme Court decision.

The big problem in the decision set down by the Supreme Court was the statement in the decision that the "right to reasonably resist an unlawful entry into a home is no longer recognized under Indiana law."  Senate Bill 1 tries to provide the right, but I think it's sloppily written and will put law enforcement officials into tough situations.

I don't know how you fix the Supreme Court's decision, but I think remedies now available under Senate Bill 1 are problems now waiting to happen should it pass into law.

If I'm wrong on this, please set me straight my lawyer friends.


Paul K. Ogden said...


Most people against Barnes ruling thought the facts of the situation in Barnes justified the police entry into the home without a warrant. The problem is that the Court didn't stop there - deciding the case on the facts as applied to the current law. The Court went on to wipe away the right to reasonably resist law enforcement based on precedent decided with respect to the 4th Amendment and missing an Indiana statute along the way.

It is unfortuante that the legislature has to take this action to correct a court ruling that was an activist decision, that was much expansive than it should have been. As I said, the legislature already had a "no retreat" statute in place that the parties and judges simply missed the first time around.

Doug said...

Just agreeing with Paul's explanation of why this wouldn't help in the Barnes case -- the court could have probably decided the case on more limited grounds without getting into an expansive discussion of the right to forcefully resist police entry (or not). The court probably should have said the criminal defendant was not entitled to the instruction because, whatever the general right to resist, the uncontested facts showed that the defendant in particular did not have such a right in that case.

Another Doug said...

The ultimate solution is to replace the Justices responsible for the decision when they are up for their 10-year retention election. The Chief Justice is retiring. Justice Steven Davis will be up in 2020. Justice Brent Dickson will be up in 2016. The last bastion for protecting civil liberties is the Supreme Court. Their decision in this case merits removal from office.

Anonymous said...

To "Another Doug"--while it is extremely rare a justice does not survive a retention vote, Justice David, who authored the Barnes opinion, is actually up for a vote this year ni 2012. Since he was appointed to fill a vacancy in mid-2010, the constitution requires him to stand for retention after 2 years following his appointment at the next General Election. Perhaps voters will be motivated.

Another Doug said...

Anonymous: Thank you for the very welcome clarification! I hope civil libertarians throughout the State take notice.

Eric Rasmusen said...

The Senate Bill is dreadful. Essentially, it confirms the Supreme Court decision. The key part is that it criminalizes resistance to unlawful entry by police who are acting in the course of official duty. That may sound paradoxical, but it is not. A policeman is acting in the course of his official duty if he comes to your house because of a noisy party complaint and rather than knocking on the door he shoot it up for fun with his pistol. All that is required for your right to resist being eliminated is that the policeman is responding to some situation that falls under his job duties.

I do not agree that the police entry was justified in the Barnes case. they could see that there was no ongoing crime (Mr. Barnes had left and was coming back), and if they'd wanted to question Mrs. Barnes they could have asked her to step into the hallway instead of forcing their way into the apartment. And in fact no crime had been committed, either--- Mrs. Barnes never claimed that Mr. Barnes had hit her, she just called the police because he was angry and she was scared.

The House version of the bill, on the other hand, is good. I hope it wins out in conference committee.