Thursday, May 26, 2011

Attorney General Greg Zoeller Argued for Expansive Barnes v. State Holding; Said the Only Thing Homeowner Should Be Able To Do Is Hold Door Against Unlawful Police Entry

Indiana Attorney General
Greg Zoeller
Attorney General Greg Zoeller has stated publicly that his office didn't ask for the Supreme Court's expansive ruling in Barnes v. State and has now asked for a rehearing to narrow it. Given Zoeller's track record of a lack of candor in public statements, I decided to go to the Clerk's Office and read the petition for transfer briefs myself.  It turns out my suspicion the Attorney General did ask for the broad ruling was right.

In the Attorney General's Petition to Transfer, Zoeller's Office asked that the Indiana supreme Court find that the right of a person to resist unlawful entry into one's home by a police officer be limited to holding the door shut against the attempts of the officer to open it.  According to the position enunciated by Deputy Attorney General Karl Schonberg, any touching of the officer to remove the officer from the home would be a battery and should not be considered "reasonable force."

The Attorney General cites the Court of Appeals case, Robinson v. State, 814 N.E.2d 704 (Ind. App. 2004), a case which seems to mix up the concept of resisting an unlawful entry and resisting arrest.  More importantly the case predates the 2006 "no retreat" amendments to IC 35-41-3-2.  That statute now says in pertient part:
(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.
Not only did the Attorney General's Office completely overlook that statute which is a defense to the charge of battery, so did the Vanderburgh County Public Defender's office.  In its Response, the Vanderburgh County pointed out that the issue of whether it was a "battery" or "reasonable force" is a jury question.
The Attorney General's Office either doesn't understand the law or doesn't care to.  That you are using "reasonable force" to repel an unlawful entry to one's home is a defense to a battery on a police office.  Interpreting the law so that battery is never "reasonable force" is to render the legal defense to battery meaningless.  Now that the Indiana General Assembly enshrined into the Indiana Code the legal principle that a homeowner can use "reasonable force" to protect himself from unlawful entry by (and there is no exception for police officers) into one's home, the Court can't simply read that statute out of the Code.  In this case though, the it appears the Indiana Supreme Court simply missed the statute.


Cato said...

Good research. Thank you.

Zoeller is a typical Republican. No amount of police power is too much for them.

These guys would welcome nightly home inspections and mandatory prayer readings.

varangianguard said...

Maybe it's tough to get good clerks these days?

Liz said...

Paul: There was NO reason for his office to seek transfer. This is a case where the jury should define what is reasonable, not just a few attorneys and judges. When that power is taken from the jury to decide, and for the people to act to reasonably defend our homes, we become subjects at the whim of govt. The seeds of the decision were from his office's brief. Yes, he did think it went too far. But I also think Zoeller goes to far.

Paul K. Ogden said...

I think they could have overruled the Court of Appeals and found that the failure to instruct was harmless error or that the facts didn't support issuign the instruction in the first place. They do that all the time. Of course we all know that the "harmless error" ruling is a bit of a do we know what the jury would do if instructed?