Supreme Court Holds Firm On Barnes v. State

UPDATED
A controversial Indiana Supreme Court decision, Barnes v. State, earlier this year created a firestorm when the state's high court abrogated a long-held rule that a person had a right to reasonably resist an unlawful entry into their home by a police officer. In the wake of public outrage over the decision authored by Justice Steven David, Attorney General Greg Zoeller asked the Court to rehear the case "to allow for a more narrow ruling that would continue to recognize the individual right of reasonable resistance to unlawful entry." The Supreme Court today announced it is affirming its earlier ruling in a 4-1 decision authored by Justice David. Justice Rucker dissented. Justice Dickson, who dissented in the earlier decision, flipped to the majority this time. The General Assembly is already laying the groundwork to statutorily overturn the controversial decision. Legislation will no doubt be sent to the Governor next year in light of today's ruling. David's ruling says the Court didn't mean what its original opinion was interpreted to say:

“Our earlier opinion was not intended to, and did not, change that existing law about the right of the people to be secure in their persons, houses, and papers against unreasonable searches and seizures.” 

Attorney General Greg Zoeller seems satisfied by the clarification issued by the Court in today's ruling:

"The Indiana Supreme Court's ruling today means that individuals still have the common law right of reasonable resistance to an unlawful entry, though there is never justification for committing battery against a police officer. In volatile domestic violence situations, police have the right to enter a home to ensure safety of others, but today's ruling also means the individual has the right to stand against his locked door to protect his home and communicate with police outside without a physical altercation. While the Legislature considers whether to revise the existing statute, we respect the Indiana Supreme Court's ruling, which underscores that the individual's constitutional right remains in force," Zoeller said.

I'm  not sure how one can "reasonably resist" an unlawful entry into their home by a police officer without running the risk of committing battery on a law enforcement officer.

Zoeller Asks For Rehearing On Barnes v. State

Attorney General Greg Zoeller at first seemed supportive of the Indiana Supreme Court's 3-2 decision in Barnes v. State abrogating the long-recognized common law rule, bolstered by the 4th Amendment, that a person had a right to reasonably resist an unlawful entry into their home by police. In the wake of the unprecedented nationwide criticism of the decision, Zoeller is now singing a different tune. He will support the defendant's counsel's petition for a rehearing of the case in hope of narrowing the court's ruling and avoiding an appeal of the controversial decision to the U.S. Supreme Court. From the AP:

Indiana's attorney general says he supports asking the state Supreme Court to revisit its recent ruling that found people don't have the right to resist police officers who enter their homes illegally.


Attorney General Greg Zoeller said Friday that a rehearing in the case would "allow for a more narrow ruling that would continue to recognize the individual right of reasonable resistance to unlawful entry."

Last week's state Supreme Court decision upholding an Evansville man's convictions for battery on a police officer and resisting law enforcement outraged some Indiana residents and lawmakers.

Although his office represents the prosecution in criminal appeals, Zoeller says he'll support a rehearing in this "unusual case" if the Evansville man asks for one. The defendant has until June 13 to seek a rehearing.

I predict the Supreme Court will grant a rehearing in the case, and I would not be at all surprised to see at least one of the justices, Chief Justice Randall Shepard, to join the two dissenting judges, Justices Dickson and Rucker, in refashioning a narrower ruling. Justice Shepard had been absent from the court for a few weeks prior to the decision's release due to a pinched nerve.

The decision has become a political headache for Mitch Daniels' potential presidential bid because the justice who authored the controversial opinion, Steven David, is his first and only choice to sit on the high court. The choice of David had already drawn criticism from some corners because of his views opposing the U.S. military's handling of Gitmo detainees where he had been assigned to represent enemy combatants accused of plotting terrorist attacks against the U.S. and its soldiers as a JAG officer.

A Legislative Response To Barnes v. State

State Sen. Mike Young (R) tells WRTV News he plans to introduce legislation to overturn the controversial 3-2 Indiana Supreme Court decision in Barnes v. State. That's the decision that abrogated the long-followed common law rule in Indiana that a homeowner had a right to reasonably resist an unlawful entry of a police officer into his home. Young says his legislation will create a statutory right consistent with the common law rule tossed out by our state's Supreme Court last week.

Public reaction to the decision has been negative from people of all political perspectives. Indiana State Police are investigating threatening e-mails and phone calls the Supreme Court says it received in the aftermath of its decision. According to a police spokesman, most of the threats have been directed at police.

UPDATE: An observant reader sends this story about a person gaining unlawful entry to your home by posing as a police officer:

Worcester police said two mask-wearing intruders burst into a house on Randall Street around 8:30 Friday morning.


“They heard loud knocking,” said Sgt. Kerry Hazelhurst of the Worcester Police Department. “Before they knew it, there were two people entering the kitchen. They were yelling that they were the police and to get on the ground. They ordered two occupants on the ground - one had a gun - and held the two on the ground at gunpoint while the other person ransacked the home. They were there for a few minutes and they both ended up fleeing the home without taking anything of value.”

Police said the intruders were not wearing uniforms or badges, however they said one of them did have on a reflective vest.

One woman, who didn't want to be identified, said she was inside the home during the invasion. She said it was a terrifying experience. Neighbors said they too were rattled by the experience. Police said they are concerned about their safety as well.

Police added that there were two similar home invasions in Worcester in November when the intruders claimed to be police.

Authorities said that is a disturbing trend.

“It increases the risk for our officers that conduct legitimate raids into homes. The people that are being raided might feel that this could be a fake raid and this could be robbing them instead and they might feel to retaliate,” said Hazelhurst.

Police said they are still investigating to determine a motive and whether the invasions are connected.

“That’s really very scary,” said Cecila Adu-Gyamfi, a neighbor. “Because it’s a very quiet neighborhood.”

“I’m shocked,” said Ted Treinor. “This is a fairly quiet neighborhood. A lot of older people live on this street. Like I said it’s fairly quiet.”

Lest we forget the recent arrest of an Indianapolis police officer for robbing illegal immigrants after pulling them over for alleged traffic violations. Illegal immigrants are particularly vulnerable to unlawful enty into their homes by police, real or fake, because they are less likely to report the crime.

Or consider this story about sneak and peek searches being carried out increasingly by federal law enforcement officials:

A special type of government search warrant that allows authorities to search homes without informing the owner for months is becoming more common, Target 7 has learned.

Imagine someone walking through your neighborhood, coming into your home and rifling through your intimate belongings.

“(They) search through your home, your dresser drawers, your computer files,” Peter Simonson, with ACLU New Mexico, said.

These search warrants don’t involve knocking on doors or any type of warning at all. Delayed-notice search warrants, or "sneak-and-peek" warrants, allow federal agents to enter your home without telling you they’ve been there until months later.

The warrants have always been around, but their use has spiked since the revamped Patriot Act in 2005. The number of delayed-notice search warrants spiked nationally from nearly 700 in fiscal year 2007 to close to 2,000 in 2009.

Upwards of 200 approved during that same three-year stretch came out of the 10th Circuit Court, which covers a handful of states including New Mexico. The majority of those delayed search warrants aren’t even for terrorism-related cases. According to the U.S. Department of Justice’s figures, the majority of the warrants are for drug cases.

“While billed as an anti-terror tool, (a sneak-and-peek warrant) had no requirements on it that it precluded it from being used in standard criminal investigations,” Simonson said.

The warrants are so secret that the New Mexico U.S. Attorney’s Office wouldn’t go on record with Target 7 about them.

The ACLU said it expects delayed-notice warrant numbers to keep growing each year as long as certain parts of the Patriot Act remain on the books.

Barnes v. State: Echoes of Fred Sanders?

The Indiana Supreme Court's 3-2 decision in Barnes v. State abrogating a long-standing common law rule that citizens have the right to reasonably resist an unlawful entry into their home by police continues to gain national attention. Fellow blogger Jeff Cox, however, focuses on a real-life Indiana case involving Indianapolis police and a warrantless intrusion into a man's home that left one police officer dead and the homeowner nearly beaten to death. Cox, who considers himself  "second to no one in being tough on crime," sees a frightening parallel in the Barnes decision with the case of Fred Sanders. Here are the facts Cox recites from another blog entry:

In 1988, a Catholic high school teacher, Fred Sanders, didn't always get along with his neighbors. They would often call the police with some sort of complaint, and each time, the complaint would be shown invalid. But it was a kind of harassment he experienced. One time, they called about a dog making racket and so the police, a group of them, came and addressed him while he was outside.

There was a discussion, and already, they were shown to be aggressive. They were already being physically abusive to him. He didn't like it, so he went back to his home, and locked the door. The police didn't like his attitude, so they demanded entry. He asked if he were under arrest or if there were a warrant. The answer to both was no. He told them to go away. They didn't. Instead, when he knew they were going to break down his door, he ran upstairs to get a shotgun. They broke in, and ran up after him. When they saw him with the gun, they started to run -- he, however, was not convinced and was afraid, after being physically assaulted. So he shot out, and hit one of the officers -- killing him! [Note: this officer was Patrolman Matt Faber -- JC.]

He gave himself up.

The other police handcuffed him and basically beat him up -- very very bad. Nearly to death. His eye was out of its socket it was so bad (and never fully healed). He is put on trial for murder, and afraid of the consequence (with a lawyer not helping, and his mother, dying, and afraid he will be put to death, telling him to take pleas) pleads guilty ( I think to manslaughter). But then others hear of the case, and think he was railroaded (should have been legitimate defense of his home/life), and that the police officers, when on trial, lied and were protecting each other as they avoided much of the evidence of what happened. He gets a new lawyer (who also recruited my dad, a law professor, as co-counsel) [Editor's note: The law professor is the late Henry Karlson of IU School of Law--Indianapolis]. The new lawyer can't do much with the conviction. So he launches a suit and criminal charges against the police.

Professor Henry Karlson often recounted this case to his law students. I recall Professor Karlson telling me how angry the police were that he had gotten involved in Fred Sanders' case, the threatening phone calls he received and how he learned that someone had illegally wiretapped his telephone while he was working on the case. Here's a factual summary of what happened in the civil case, which was Sanders' only recourse for justice:

On August 4, 1988, numerous IPD officers, after illegally forcing their way into the home of Fred Sanders and arresting him, savagely beat Sanders after he was handcuffed and subdued, causing Sanders serious bodily injury. The police department covered-up the use of excessive force by the officers in the case. IPD Officer Robert Ward was identified by civilians as one officer who engaged in the beating, and he was later convicted of battery. The federal jury who heard the Sanders case returned a verdict for $1.5 million for Sanders and against the Police and the City of Indianapolis. This sent a powerful message to the police that the community would no longer tolerate such abusive behavior towards Hoosier's as the Defendants' in that case had exercise with impunity against Sanders. Judge Sarah Evans Barker, in one of the more heinous acts of usurpation of citizens' power committed from a federal court bench, reduced this jury award to a mere $77,000.00, thereby condemning Sander's attorney to retry the case no less than three more times on narrower grounds than the first trial court victory.