Barnes v. State of Indiana (2011)

-Submitted by David Drumm (Nal), Guest Blogger

The Indiana Supreme Court, in a 3-2 decision, has ruled that the common-law right to reasonably resist unlawful entry by police officers is trumped by public policy. Appellant Barnes was involved in a domestic dispute with his wife when police tried to gain entry into the house. They asked if they could enter the house and Barnes refused, blocking the doorway. The police entered anyway and Barnes “shoved [an officer] against the wall.” The officers used a taser on Barnes and arrested him. There were no charges regarding domestic violence.

Barnes was charged with misdemeanor battery against a police officer, resisting law enforcement, and, the ever present, disorderly conduct. The trial judge denied Barnes‘s proffered jury instruction:

When an arrest is attempted by means of a forceful and unlawful entry into a citizen‘s home, such entry represents the use of excessive force, and the arrest cannot be considered peaceable. Therefore, a citizen has the right to reasonably resist the unlawful entry.

Barnes appealed, claiming that his tendered jury instruction should have been given because it was a correct statement of a viable legal defense. The Indiana Supreme Court ruled that the trial judge was not in error. From the majority opinion:

We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence.

From the dissent:

In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.

[snip]

In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally – that is, without the necessity of a warrant, consent, or exigent circumstances.

The dissent also notes that “a respectable argument could be made that police response to a report of domestic violence is an exigent circumstance justifying entry into a home without a search warrant.” However, since no domestic violence charges were filed, that exigent circumstance is without merit. In addition, once the officers saw that there was no domestic violence, only a domestic dispute, they had no grounds for remaining on the scene.

The controlling precedent appears to be Miller v. United States where the U.S. Supreme Court held that someone “could not lawfully be arrested in his home by officers breaking in without first giving him notice of their authority and purpose.”

H/T: FourthAmendment.com, ABA Journal.

33 thoughts on “Barnes v. State of Indiana (2011)

  1. WT Hell? Good one nal…..

    I think that it should have been couched under a narrow exception…as Public Policy dictates that when “Officers responding to a call regarding an alleged Domestic Violence the nature of the offense abrogates the traditional warrant requirements of a warrant for entry to a persons home….as under exigent circumstances……”

    That way everyone is happy….well…not the one arrested….or home intruded into…or upon….

  2. Here is a morsel:

    Carter: Landlords say Newark man refuses to pay rent, trashes apartments, then ties them up in court
    Published: Sunday, May 15, 2011, 8:30 AM Updated: Sunday, May 15, 2011, 8:41 AM.

    “NEWARK — He looks like an attorney in his crisp gray suit, white shirt and red patterned tie.

    Not only does he dress the part, Mark Newton knows the law. In fact, an exhaustive Star-Ledger review of his court filings shows that for at least 19 years he has made Superior, chancery, federal and municipal courtrooms his virtual offices, representing himself in hundreds of court battles — though he has no license to practice law.”

    http://blog.nj.com/njv_barry_carter/2011/05/carter_newark_man_acts_as_his.html

  3. “The opinion marks the second time in a week that the Indiana Supreme Court addressed police entry. On Tuesday, the court found that police serving a warrant can enter a home without knocking, if officers decide that approach is necessary.” -from the linked ABA article

    Many years ago, while visiting relatives in Florida, an officer came to their door and stated that he was responding to a call about a domestic dispute. Wrong house, wrong people but before the owners could object, he pushed past one of them and walked through the entire house, in spite of the homeowners’ assurances that all was well. The bad taste lingers…

    The best thing we could do is just dispense with all this legal nonsense. These officers are only doing their best “to serve and protect”, and should be given the right to enter our homes at any time, for whatever reason. They only have our best interests at heart, afterall… If one isn’t doing anything wrong and doesn’t have anything to hide, then what’s the problem? (insert “sarcsm” emoticon)

    Shaking the old head…

  4. William Grigg recently wrote on this ruling:

    Indiana Supreme Court Upholds the ‘Rapist Doctrine’: Don’t Resist — You’ll Just Make It Worse

    The Indiana State Supreme Court has just nullified the Fourth Amendment and the equivalent provision of that state’s constitution, in addition to “a common law dating back to the English Magna Carta of 1215,” notes a wire service report. In a 3–2 decision, the court has ruled that Indiana residents have no right to obstruct unlawful police incursions into their homes…

    In the interests of brevity, these rulings should be consolidated under the name “Rapist Doctrine,” in recognition of the fact that are pseudo-scholarly versions of the advice once urged upon women enduring sexual assault: Don’t resist — it will only make things worse.

  5. In the dim recesses of what is left of my mind I seem to remember the Constitution mumbling something about a right to be secure from unreasonable search and seizure. I realize that, like the Geneva Conventions, that is a quaint and outdated idea but don’t a lot of these justices claim to be “strict constructionists”?

    Well, it was a good run for just shy of 224 years.

  6. “a right to be secure from unreasonable search and seizure” -frank

    …only applies to some… And the full truth about what’s going on is beyond Orwellian… Sadly, many of the comfortable and well-fed probably wouldn’t care, if they knew…

  7. Police really dislike domestic calls, preferring to talk the people outside where they can deal with them in the open without the parties’ access to weapons, and negating the fourth amendment. They have little choice but to act in reported domestic vilonce cases. And in conservative Indiana, this plaintiff has little chance of winning.

  8. “ ‘a right to be secure from unreasonable search and seizure’ -frank

    …only applies to some… And the full truth about what’s going on is beyond Orwellian… Sadly, many of the comfortable and well-fed probably wouldn’t care, if they knew… ” (anon nurse)

    ====================================================

    The courts have placed an enormous amount of power in the hands of the few. Such power has a tendency to corrupt and it is foolish to insist that some are above this corruption in the face of all evidence to the contrary. The ‘they’ anon nurse mentions are fools for the imagined railroad tracks that separate them from their neighbors are flat and without barriers.

  9. In Arizona on May 5, a SWAT team shot this young former Marine 60 times while he, his wife, and 4-year-old son were in their home. Also, I guess if SWAT in raiding your house and trying to kill those inside, you might as well forget about calling 911…

    {Quote:

    “The Pima County Sheriff’s Department has provided no details about the investigation that prompted the raid and little information about the moments leading up to 71 gunshots being fired at Guerena, whose gun had the safety on. He was shot 60 times, doctors told the family. Initially the Sheriff’s Department said Guerena fired at officers, but they retracted that this week. Drexel Heights provided audio of the 911 calls after the Star filed a public records request.”

    End Quote}

    http://azstarnet.com/news/local/crime/article_b3177522-baa0-5c9e-9f0d-d3d7da6e9e4b.html

  10. Former Fed,
    That is a horrible story. It only took these guys 60 shots to realize that they killed him? I think murder is the proper term for this shooting.

  11. rafflaw,

    As with many events in today’s world, it is impossible to make sense of this killing.

  12. Former Federal LEO,

    Re: “As with many events in today’s world, it is impossible to make sense of this killing.”

    Thank you for your conclusion and for posting the link. “Two tours in Iraq”, according to the Arizona Daily Star and he dies “by SWAT” in America. Perhaps Professor Turley will pick this up and post it on the blog today. As rafflaw said, it’s hard to see this as anything other than a murder. It’s both heartbreaking and a tragedy…

    “Guerena was a Tucson native and Flowing Wells High School graduate. He joined the Marines in 2002. He served two tours in Iraq in 2003 and 2005 as part of the Yuma-based MWSS-173.” -Arizona Daily Star.

  13. As a former LEO who currently teaches the ambiguous curriculum known as Criminal Justice; I was initially concerned with the 4th Amendment issues raised by this case. Granted, Indiana is a “different” kind of place, but the woman in this matter, who may have initially been perceived to be the victim, did not appear to object to the police presence. This lack of unity between the two alleged combatants may have given the police a misconception, upon which they acted and entered illegally.

    In any event, the decision is disturbing, and in Chicago the officers’ badge/star numbers would have been winning lottery numbers for a major pay-out to the Barnes family. Especially if they were represented by Loevy & Loevy, who specialize in lawsuits against the City of Chicago.

  14. Former Fed, no, it’s easy to make sense of it. Just ask Ed Norris! The guy who was running the show back in NYC when Diallo was shot. On his radio show, he defended that a few years ago, stating that people just don’t understand how easy it is to completely unload a gun on someone, and with all of the cops in an area, they all don’t know how many shots their comrades will be firing, so people end up getting shot 40+ times… It makes perfect sense, right!????

  15. Jude, it is a matter of training. The days of Bonnie and Clyde are over. There is no excuse for a fusillade of bullets whether it is one officer or a dozen. Many agencies train their officers to fire two shots and pause to see effect after each two shots.

  16. Also – I am not a lawyer, hell I don’t even play one on TV, can someone tell me if Kentucky v. King really fits this pattern of allowing police more right to enter authority? Seems relevant to this story.

  17. The police and the courts make up the law as they go along. They wipe their ass with the constitution. Indiana Supreme Court justices Sullivan, Shepard, and David are treasonous scum that need to be dealt with.

  18. “However, since no domestic violence charges were filed, that exigent circumstance is without merit.”

    Whether exigent circumstances exception applies depends on the facts known to the officers at the time, not based on what charges were later filed.

    I discuss this take on my blog. I think it should have been decided using much narrower reasoning. Plus there is a statute on point which the Court seemed to overlook.

    http://www.ogdenonpolitics.com/2011/05/barnes-v-state-dissenters-are-correct.html

  19. This ruling, and others like it, make complete sense if law martial rule enforced in military tribunals is the justifying public policy mentioned in the opinion.
    Every male and female citizen between certain ages is a member of the militia.
    And they have the right to be “represented” when criminally charged.
    That’s “representation” not assistance of counsel.
    Check it out.
    The Judges are just applying the law, the law of law martial rule.

  20. To: anon nurse…..

    Benjamin Franklin once said…” A man who would trade his liberty for security deserves neither.

    You are the kind of person that would blindly walk into a pit of hungry vipers If I told you they wouldnt harm you.

    anon nurse 1, May 15, 2011 at 8:58 am

    “The opinion marks the second time in a week that the Indiana Supreme Court addressed police entry. On Tuesday, the court found that police serving a warrant can enter a home without knocking, if officers decide that approach is necessary.” -from the linked ABA article

    Many years ago, while visiting relatives in Florida, an officer came to their door and stated that he was responding to a call about a domestic dispute. Wrong house, wrong people but before the owners could object, he pushed past one of them and walked through the entire house, in spite of the homeowners’ assurances that all was well. The bad taste lingers…

    The best thing we could do is just dispense with all this legal nonsense. These officers are only doing their best “to serve and protect”, and should be given the right to enter our homes at any time, for whatever reason. They only have our best interests at heart, afterall… If one isn’t doing anything wrong and doesn’t have anything to hide, then what’s the problem? (insert “sarcsm” emoticon)

    Shaking the old head…

  21. The 4th amendment says right to due process…not right to fight. There is plenty of due process in this nation. This ruling follows many similar rulings around the nation. The ruling makes the accurate argument: you have numerous avenues of legal recourse after an unlawful intrusion and resisting will only result in escalation and eventual arrest anyway. We are not living in remote huts on the King’s land anymore.

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