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.

Indiana Supreme Court Abrogating Citizen's Right To Resist Unlawful Police Entry Into Home Making Headlines

It's not often that a decision by the Indiana Supreme Court gets national attention, but a case decided by Gov. Mitch Daniels' first and only appointee to the high court is getting noticed. The case could have been your run of the mill domestic case involving an argument between husband and wife where wife feels threatened, wife calls police, police respond to wife's call and proceed to haul husband off to jail. What else is new? A broad-sweeping abrogation of a recognized common law right to resist an unlawful entry of police into a person's home, however, has drawn a lot of attention to this case. Here are the basic facts in Barnes v. State:

Officer Lenny Reed, the first responder, saw a man leaving an apartment with a bag and began questioning him in the parking lot. Upon identifying the man as Barnes, Reed informed him that officers were responding to a 911 call. Barnes responded that he was getting his things and leaving and that Reed was not needed. Barnes had raised his voice and yelled at Reed, prompting stares from others outside and several warnings from Reed.

Officer Jason Henry arrived on the scene and observed that Barnes was ―very agitated and was yelling. Barnes ―continued to yell, loudly and did not lower his voice until Reed warned that he would be arrested for disorderly conduct. Barnes retorted, ―if you lock me up for Disorderly Conduct, you’re going to be sitting right next to me in a jail cell. Mary came onto the parking lot, threw a black duffle bag in Barnes’s direction, told him to take the rest of his stuff, and returned to the apartment. Reed and Henry followed Barnes back to the apartment. Mary entered the apartment, followed by Barnes, who then turned around and blocked the doorway. Barnes told the officers that they could not enter the apartment and denied Reed’s requests to enter and investigate. Mary did not explicitly invite the officers in, but she told Barnes several times, ―don’t do this and ―just let them in. Reed attempted to enter the apartment, and Barnes shoved him against the wall. A struggle ensued, and the officers used a choke hold and a taser to subdue and arrest Barnes. Barnes suffered an adverse reaction to the taser and was taken to the hospital.

At trial, Barnes' attorney wanted the jury to be instructed that he had the right to reasonably resist police from making a warrantless entry into his home based on a long-recognized right at common law but was denied the instruction by the trial court judge. The jury found Barnes guilty of resisting a law enforcement officer, battery on a law enforcement officer and disorderly conduct. The Indiana Court of Appeals ruled it error for the trial court to deny the instruction to the jury and ordered a new trial. In a 3-2 opinion authored by Judge Steven David, the Indiana Supreme Court reversed the lower court ruling and completely abrogated recognition of the common law right. “In sum, we hold that [in] Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.” Apparently, none of the three justices or their clerks caught the grammatical error in their sweeping decision. Explaining the Court's ruling, Justice David wrote:

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. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. E.g., Warner, supra, at 330 (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist); State v. Hobson, 577 N.W.2d 825, 835–36 (Wis. 1998) (citing the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies). We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest—as evident by the facts of this instant case. E.g., Hobson, 577 N.W.2d at 836 (―But in arrest situations that are often ripe for rapid escalation, one’s measured’ response may fast become excessive.). Further, we note that a warrant is not necessary for every entry into a home. For example, officers may enter the home if they are in ―hot pursuit of the arrestee or if exigent circumstances justified the entry. E.g., United States v. Santana, 427 U.S. 38, 42–43 (1976) (holding that retreat into a defendant‘s house could not thwart an otherwise proper arrest made in the course of a ―hot pursuit‖); Holder v. State, 847 N.E.2d 930, 938 (Ind. 2006) (Possible imminent destruction of evidence is one exigent circumstance that may justify a warrantless entry into a home if the fear on the part of the police that the evidence was immediately about to be destroyed is objectively reasonable.). Even with a warrant, officers may have acted in good faith in entering a home, only to find later that their entry was in error. E.g., Arizona v. Evans, 514 U.S. 1, 11 (1994); United States v. Leon, 468 U.S. 897, 922–25 (1984). In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance.

Justices Brent Dickson and Robert Rucker offered separate, stinging dissenting opinions. Justice Dickson wrote, “In my view, the wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad.” "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," Justice Rucker opined. "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."

A Drudge Report headline linking to an Indiana newspaper story on the Court's ruling reads, "Indiana court rules Americans have no right to resist illegal police entry into home." The Northwest Indiana Times story begins:

Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.


In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry . . .

Professor Ivan Bodensteiner, of Valparaiso University School of Law, said the court's decision is consistent with the idea of preventing violence.


"It's not surprising that they would say there's no right to beat the hell out of the officer," Bodensteiner said. "(The court is saying) we would rather opt on the side of saying if the police act wrongfully in entering your house your remedy is under law, to bring a civil action against the officer."

I think most legal observers would agree with Professor Bodensteiner's defense of the case as serving to prevent violence, particularly in a case such as this one where tempers had already flared as a result of a domestic dispute. It's the total sweeping aside of the common law rule that is unsettling. "Indiana Supreme Court issues death warrant for Fourth Amendment" blares a headline at Pajamas Media. "This case may not get to the Supreme Court of the United States; that requires time and money," writes Dan Miller. "It should get there because it purports to abrogate — in Indiana — prior Supreme Court rulings on the Fourth Amendment and because cases embodying bad law tend to breed and multiply." I suspect the case may get even more attention in the days ahead if Gov. Daniels decides to run for president for no other reason than the decision is authored by his first and only state supreme court appointee.

Hat tip to Indiana Law Blog.

UPDATE: Hot Air weighs in with this critical take on the decision:

One has to wonder what part of “unlawful” Justice David doesn’t get. What part of the right of the people to “be secure… shall not be violated” wasn’t taught to him in law school.


How secure is anyone in their “persons, houses, papers and effects” if, per David, a police officer can waltz into any home he wants to “for any reason or no reason at all?”

The given reason by the Justice is resistance is “against public policy?” What policy is that? For whatever reason, most believe our public policy as regards our homes is set by the 4th amendment to the US Constitution. Since when does Indiana’s “public policy” abrogate the Constitutional right to be “secure in our persons, houses, papers and effects”?

Additionally, most would assume it is the job of the police not to “escalate the level of violence”, not the homeowner. Like maybe a polite knock on a door to attempt an arrest instead of a battering ram and the violent entry of a full SWAT team to arrest a suspected perpetrator of a non-violent crime. Maybe a little pre-raid intelligence gathering, or snagging the alleged perp when he leaves the house to go to work, or walk the dog, or go to the store.

Now citizens in Indiana are to give up their 4th Amendment rights because it might “elevate the violence” if they attempt to protect themselves from unlawful activity? Sounds like the “don’t resist rape” nonsense that was once so popular.

It looks like someone else has picked up on the rape analogy made in the Hot Air post. Len Rockwell pens a post entitled, "Indiana Supreme Court upholds the Rapist Doctrine: Don't resist--you'll just make it worse."