« Courts - "Top Pennsylvania jurist says courts underfunded" | Main | Not law but important - "What's killing Hoosier women?" »

Monday, May 16, 2011

Ind. Decisions - Still more "Court: No right to resist illegal cop entry into home"

Last week's 3-2 Supreme Court decision in Richard L. Barnes v. State of Indiana (most recent ILB post here) has been the topic of much discussion on the web, and in print.

From Indiana, Mark Kiesling, columnist for the NWI Times who wrote an earlier column on the new "no knock" ruling, had this Sunday column - here is a sample:

For the second time in a week, the high court has seriously curtailed the rights of Indiana residents to be safe within their own homes and to be protected from illegal police action.

Tuesday, the court voted 5-0 to allow warrantless entry into homes, where before there had to be some probable cause to enter a private residence.

A man's home is no longer his castle, at least not in the Hoosier state.

On Thursday, the high court's newest excursion into fascism forbids private citizens from resisting illegal, unlawful arrest, even on their own property.

Thankfully, I guess, two justices dissented from the majority 3-2 decision, and both are from the area: Brent Dickson, of Hobart, and Bob Rucker, of Gary.

Dickson, who wrote the majority opinion on the Tuesday travesty, apparently had enough.

Also last week, the ILB received a note from an Indiana attorney/reader who asked how the Court's decision could be reconciled with the so-called "stand your ground" or "no retreat" law the Indiana General Assembly enacted in 2006. (See ILB entry from 3/22/06 and this one from 12/27/09 for background).

The statute, as amended, now provides at IC 35-41-3-2(b):

(b) A person:
(1) is justified in using reasonable force, including deadly force, against another person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle.
The reader writes:
There does not appear to be a law-enforcement exception to the rule; that is, the self-defense statutory right doesn't become inapplicable solely because the person making the unlawful entry is a law-enforcement officer. The factual circumstances of any particular case may dictate when a belief is reasonable, but surely there are cases where a person will have a reasonable belief that a person (law-enforcement officer or not) is entering their house unlawfully.
In answer to questions posed by the ILB, another reader noted:
But the statute only allows the use of force "if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle." (emphasis added). Doesn't Barnes render any and every incursion by police into a person's house lawful? Moreover, the defendant would have to assert self-defense at trial to get an instruction. It doesn't look like that happened in Barnes.

Posted by Marcia Oddi on May 16, 2011 09:54 AM
Posted to Ind. Sup.Ct. Decisions