Welsh calls the decision '[a] broad-sweeping abrogation of a recognized common law right to resist an unlawful entry of police into a person's home[.]"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.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:
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.
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."
I consider myself second to no one in being tough on crime, at least those crimes with victims other than the perpetrator. My complete ruthlessness on crime has gotten me into trouble at times, but having been a victim of crime on multiple occasions and seeing how perpetrators get away because they are considered "minor" to the system, even though to the victims whom the system is supposed to protect these crimes are heinous and often life-altering, I think I'm entitled to a certain amount of ruthlessness.
I'm very pro-law enforcement. I've never had a bad experience personally with law enforcment. I feel similar to the Indiana Supreme Court majority, as expressed in Barnes. Or used to. After reading this decision, I'm not so sure if ruthlessness works here, or is instead maybe even counterproductive.
Long ago, back when Iw as in high school, there was the Fred Sanders case. It's hard to find good descriptions of this old case on the Web, so here is the best I could find:
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.Here is how that case turned out:
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). The new lawyer can't do much with the conviction. So he launches a suit and criminal charges against the police.
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 deparment 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 impugnity 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.At the time and for a long time afterwards, I supported the police here. Sanders should not have resisted. He had other, more peaceful options. In short, I agreed with thinking behind the Barnes decision.
I met people who were involved in Sanders' defense. They pointed out something that I, Mr. Ruthless, in my blind zeal for law and order, had not noticed: Sanders had committed no crime whatsoever until after police illegally forced their way into his home.
Which begs the question, did police by their activities, for want of a better word "create" this crime? But for the police action in illegally forcing their way into Sanders' home, would Sanders have committed his crime?
It is sad and unfortunate that Patrolman Matt Faber died as a result of this confrontation; I do not want anything said here to be taken as minimizing that tragedy. Can Faber's death be traced only to Sanders' gunfire, or can it also be traced to the illegal entry? Proximate causation, it is called. If police had not illegally forced their way into Sanders' home, wouldn't Matt Faber have instead had a long and honorable law enforcement career protecting the public?
The Barnes decision now says that such an illegal entry is irrelevant. I don't know that that's a good thing.
Glenn Reynolds has followed case after case of no-knock police raids on non-violent drug offenders that go horribly wrong. For instance, they sometimes raid the wrong house. Or they don't identify themselves. Or both.
The result sometimes is tragic. A private citizen who has done nothing wrong hears people in the middle of the night busting in and thinks a home invasion is happening. The citizen tries to put up a defense -- a natural reaction -- but someone is injured or killed. Only afterwards is it revealed that the people were police. The citizen is now either dead or injured or a criminal suspect for having resisted police when the police had not identified themselves.
It is, indeed, one step removed from Fred Sanders. But Barnes would seem to make this scenario more likely, with the result being more "bootstrapped crimes" against otherwise innocent civilians and more danger for police like Matt Faber.
Is this a good thing?