-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.
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.
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…
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.
Just another nail in the coffin that was freedom
“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
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.
As night follows day . . .
http://www.newmediablog.com/2011/05/in-sheriff-if-we-need-to-conduct-random-house-to-house-searches-we-will/
Indiana Sheriff says he will conduct random house-to-house searches if he damn well feels like it after this ruling.
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.
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.