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Indiana Supreme Court Ruling Destroys Fourth Amendment Rights

Thursday, 19 May 2011 04:18 By Michael Gass, Truthout | News Analysis

The Indiana Supreme Court recently ruled in Barnes v. Indiana that reasonable resistance to unlawful police entry into a person's home would no longer be recognized under Indiana law.

The case was argued, wrongly, that police were unlawfully trying to enter the home of Mr. Richard Barnes. This was not the case. Police officers were responding to a 911 call of domestic violence at the residence that was placed by Mary Barnes, the spouse of Richard Barnes. Under Indiana statute, officers have a duty to investigate domestic violence and it is a crime for a person to interfere with the reporting of domestic violence (IC 35-33-1):

(10) probable cause to believe that the person is:

(A) violating or has violated IC 35-45-2-5 (interference with the reporting of a crime); and
(B) interfering with or preventing the reporting of a crime involving domestic or family violence (as defined in IC 34-6-2-34.5).

The facts of the case make clear that a) Mrs. Barnes initiated a 911 call that went to officers as a domestic violence in progress; b) once officers arrived, Mr. Barnes tried to stop officers from speaking with Mrs. Barnes (who was inside the residence), which interfered with her ability to make a report; and c) while Mrs. Barnes didn't specifically tell officer's they could enter, she indicated to Mr. Barnes that he should let them into the residence. Given these circumstances, it is clear that officers were not attempting an unlawful entry into the residence.

The court acknowledges that the right of the person to resist unlawful actions by police is over 300 years old, has been decided by the United States Supreme Court repeatedly and that it has been upheld in these rulings that individuals do indeed possess the right to resist unlawful arrest.

"One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases." - United States v. Di Re, 332 US 581, 594 (1948)

The court then ruled: "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. Eg, 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)."

By taking away the right of the individual in its entirety, the ruling by the Indiana Supreme Court is a travesty. The reasoning behind the ruling is just as puzzling: "In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment." In this ruling, the Indiana Supreme Court overlooks the fact that actions taken by law enforcement can escalate, or de-escalate, the situation and gives carte blanche with respect to officers' actions.

Truthout sustains itself through tax-deductible donations from our readers. Please make a contribution today to keep truly independent journalism strong!

The court ruling makes clear that there was a time of communication between Mr. Barnes and Officer Reed: "Barnes told the officers that they could not enter the apartment and denied Reed's requests to enter and investigate." At this point, the officer attempted to push past Mr. Barnes, thus escalating the situation into a physical confrontation.

The court's ruling doesn't state whether Officer Reed took the small amount of time necessary to explain to Mr. Barnes that he was obstructing an investigation and the reporting of domestic violence in violation of state law or not. In fact, the court ruling makes it a moot point: "Because we decline to recognize the right to reasonably resist an unlawful police entry, we need not decide the legality of the officers' entry into Barnes' apartment."

The court ruling goes on to state: "It is unrealistic to expect officers to wait for threats to escalate and for violence to become imminent before intervening." Again, the court totally eliminates responsibility on the part of the officer - in this case, by invoking a straw-man argument as, of course, officers aren't expected to stand there and wait for threats or violence before intervening. Nor, is it unreasonable for an officer to take a minute to explain to an individual the legality of a situation when there is clearly time in which to do so and, in doing so, keep the situation from escalating to violence.

It is the final statement in the court's ruling that is the most troubling: "In sum, we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law."

As stated in the dissenting opinion by Justice Rucker: "But the common law rule supporting a citizen's right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the United States Constitution. Indeed, 'the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' Payton v. New York, 445 US 573, 585 (1980)."

There is no doubt that this ruling will be appealed to the United States Supreme Court based solely on the fact that it works to undo such a fundamental right set forth in the Fourth Amendment of the Constitution. The problem, however, is that there is no guarantee that the US Supreme Court, under Chief Justice Roberts, will seek to overturn the broad nature of the ruling.

The problem, as I see it, is that the earlier decisions referenced by the court were focused on unlawful arrest while this decision is focused on the unlawful entry into a home. This ruling, in effect, gives law enforcement carte blanche to enter a home, even if it knowingly commits unlawful acts to do so, by stating that "other remedies" are available to an individual. The foundation, however, of these "other remedies" are based upon the constitutional protections afforded to all individuals. If we no longer recognize the need for these constitutional protections, don't we also undermine the entire authority for these "other" remedies?

Michael Gass

Michael Gass is a former Explosive Ordnance Disposal Specialist and veteran of the Gulf War during operations in Iraq in 1991. He returned to Iraq in 2006 as a US contractor doing ordnance disposal. Gass performed numerous VIP protection missions for the US State Department to include presidential protection missions for Presidents Reagan, Bush Sr. and Clinton. He graduated from the South Carolina Criminal Justice Academy with honors in 1996 and spent six years in law enforcement.


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Indiana Supreme Court Ruling Destroys Fourth Amendment Rights

Thursday, 19 May 2011 04:18 By Michael Gass, Truthout | News Analysis

The Indiana Supreme Court recently ruled in Barnes v. Indiana that reasonable resistance to unlawful police entry into a person's home would no longer be recognized under Indiana law.

The case was argued, wrongly, that police were unlawfully trying to enter the home of Mr. Richard Barnes. This was not the case. Police officers were responding to a 911 call of domestic violence at the residence that was placed by Mary Barnes, the spouse of Richard Barnes. Under Indiana statute, officers have a duty to investigate domestic violence and it is a crime for a person to interfere with the reporting of domestic violence (IC 35-33-1):

(10) probable cause to believe that the person is:

(A) violating or has violated IC 35-45-2-5 (interference with the reporting of a crime); and
(B) interfering with or preventing the reporting of a crime involving domestic or family violence (as defined in IC 34-6-2-34.5).

The facts of the case make clear that a) Mrs. Barnes initiated a 911 call that went to officers as a domestic violence in progress; b) once officers arrived, Mr. Barnes tried to stop officers from speaking with Mrs. Barnes (who was inside the residence), which interfered with her ability to make a report; and c) while Mrs. Barnes didn't specifically tell officer's they could enter, she indicated to Mr. Barnes that he should let them into the residence. Given these circumstances, it is clear that officers were not attempting an unlawful entry into the residence.

The court acknowledges that the right of the person to resist unlawful actions by police is over 300 years old, has been decided by the United States Supreme Court repeatedly and that it has been upheld in these rulings that individuals do indeed possess the right to resist unlawful arrest.

"One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases." - United States v. Di Re, 332 US 581, 594 (1948)

The court then ruled: "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. Eg, 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)."

By taking away the right of the individual in its entirety, the ruling by the Indiana Supreme Court is a travesty. The reasoning behind the ruling is just as puzzling: "In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment." In this ruling, the Indiana Supreme Court overlooks the fact that actions taken by law enforcement can escalate, or de-escalate, the situation and gives carte blanche with respect to officers' actions.

Truthout sustains itself through tax-deductible donations from our readers. Please make a contribution today to keep truly independent journalism strong!

The court ruling makes clear that there was a time of communication between Mr. Barnes and Officer Reed: "Barnes told the officers that they could not enter the apartment and denied Reed's requests to enter and investigate." At this point, the officer attempted to push past Mr. Barnes, thus escalating the situation into a physical confrontation.

The court's ruling doesn't state whether Officer Reed took the small amount of time necessary to explain to Mr. Barnes that he was obstructing an investigation and the reporting of domestic violence in violation of state law or not. In fact, the court ruling makes it a moot point: "Because we decline to recognize the right to reasonably resist an unlawful police entry, we need not decide the legality of the officers' entry into Barnes' apartment."

The court ruling goes on to state: "It is unrealistic to expect officers to wait for threats to escalate and for violence to become imminent before intervening." Again, the court totally eliminates responsibility on the part of the officer - in this case, by invoking a straw-man argument as, of course, officers aren't expected to stand there and wait for threats or violence before intervening. Nor, is it unreasonable for an officer to take a minute to explain to an individual the legality of a situation when there is clearly time in which to do so and, in doing so, keep the situation from escalating to violence.

It is the final statement in the court's ruling that is the most troubling: "In sum, we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law."

As stated in the dissenting opinion by Justice Rucker: "But the common law rule supporting a citizen's right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the United States Constitution. Indeed, 'the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' Payton v. New York, 445 US 573, 585 (1980)."

There is no doubt that this ruling will be appealed to the United States Supreme Court based solely on the fact that it works to undo such a fundamental right set forth in the Fourth Amendment of the Constitution. The problem, however, is that there is no guarantee that the US Supreme Court, under Chief Justice Roberts, will seek to overturn the broad nature of the ruling.

The problem, as I see it, is that the earlier decisions referenced by the court were focused on unlawful arrest while this decision is focused on the unlawful entry into a home. This ruling, in effect, gives law enforcement carte blanche to enter a home, even if it knowingly commits unlawful acts to do so, by stating that "other remedies" are available to an individual. The foundation, however, of these "other remedies" are based upon the constitutional protections afforded to all individuals. If we no longer recognize the need for these constitutional protections, don't we also undermine the entire authority for these "other" remedies?

Michael Gass

Michael Gass is a former Explosive Ordnance Disposal Specialist and veteran of the Gulf War during operations in Iraq in 1991. He returned to Iraq in 2006 as a US contractor doing ordnance disposal. Gass performed numerous VIP protection missions for the US State Department to include presidential protection missions for Presidents Reagan, Bush Sr. and Clinton. He graduated from the South Carolina Criminal Justice Academy with honors in 1996 and spent six years in law enforcement.


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