-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.
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.”