News From Terre Haute, Indiana

June 12, 2011

STATE OF THE STATEHOUSE: Other remedies exist if officer enters home illegally

Maureen Hayden
Tribune-Star Statehouse Bureau

INDIANAPOLIS — One of the more curious things going on in the Indiana Statehouse these days is the decision by some lawmakers to second-guess a controversial decision by the state’s judicial branch of government.

This past week, 71 members of the Indiana General Assembly filed a petition asking the Indiana Supreme Court to reconsider its ruling that citizens don’t have the right to resist police officers who enter their homes illegally.

Rallied by a Republican state Sen. Mike Young of Indianapolis, the petitioning lawmakers made the move after their legislative leaders created a summer study committee to determine if the Indiana General Assembly has the power to neutralize the court decision with a new state law.

In a press release accompanying the announcement of the legislators’ petition to reconsider the ruling in the Richard L. Barnes v. State case, Young said the court’s decision had galvanized the attention of Hoosiers who fear they’ve lost the right to self-defense.

The case that sparked the court’s decision involved an Evansville man who was convicted of a misdemeanor crime of resisting law enforcement, after shoving an officer who tried to enter his home without a warrant when police responded to 911 call about a domestic fight.

In its divided 3-2 decision, the court said that allowing a homeowner to fight back against police could lead to an escalating situation that could quickly turn violent. (Interestingly, the opinion was written by Justice Steven David, a conservative Republican jurist who, in his previous life as a military lawyer, infuriated the Bush White House when vigorously argued for the rights of Guantanamo Bay detainees charged in the 9/11 terrorist attacks.)

Angry critics who interpreted the court’s decision more darkly argued that it was “American” and a violation of Fourth Amendment protections against unlawful searches and seizures. They demanded the three justices on the majority side of the opinion resign or be booted from office in November 2012, when they’re up for retention.

As with many issues in the Statehouse, rhetoric may soon shut out reasoning. Lost along the way may be the nuances of the ruling and the opinions of legal scholars who’ve weighed in with thoughtful remarks. Among them: Indiana University and Valparaiso University Fourth Amendment scholars who say the decision, right or wrong, brings Indiana into conformity with most states who’ve already prohibited the use of physical force against police arrests or home entries.

The decisions by other state courts to frown upon irate citizens punching an intrusive cop in the nose stems in large part from the availability of other remedies. Among them: if you can prove that you suffered an unlawful arrest or house entry, you can sue the police under state and federal law and get money: damages awarded, both to compensate you for your pain and suffering and to punish the police for overstepping their boundaries.

Still, two justices on the court disagreed with the majority opinion, as does the defense attorney who first brought the case on Barnes’ behalf. The Indiana Attorney General Greg Zoeller isn’t too keen on the ruling either. But unlike some other critics, Zoeller’s concern wasn’t that the ruling to uphold the Barnes’ conviction was wrong, but that it was written too broadly.

Meanwhile, Indiana Gov. Mitch Daniels weighed in with his thoughts, or more accurately, decided not to weigh in. Said Daniels: “I’m not in habit of giving advice to the Supreme Court.”