Barnes v. State: Dissenters Are Correct that Court Goes Too Far in Tossing Out the Right of a Homeowner to Resist Unlawful Entry by a Police Officer; Did Court Completely Miss IC 35-41-3-2?

I've been tied up with work the last few days and had not had a chance to review Barnes v. State.  Now having had the chance to read it, I definitely have a view about the case.

One of the principles of crafting judicial opinions that I learned clerking at the Indiana Court of Appeals is that you decide cases by the least means possible.  In other words, instead of creating some new legal principle which overturns hundreds of years of precedent, you first try to decide the case by looking at the facts involved, relevant state law statutes, etc.  Here the dissenters criticize the majority for overreaching to create a precedent on an issue which apparently the State had not even advocated.


Justice Steven David wrote
the Barnes v. State opinion

First, let's look at the holding in the case:   "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."

The majority in its analysis opines that the 4th Amendment case law no longer support the right to resist unlawful entries and that the centuries old common law right to resist unlawful entry should no longer exist due to policy reasons and the evolution of society in protecting rights of those who are arrested.  While I don't necessarily agree with that, what about about IC 35-41-3-2, a statute that is never discussed in the Court's opinion?  It says in pertinent part:

(a) A person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person:

(1) is justified in using deadly force; and
(2) does not have a duty to retreat;

if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.

(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.

(c) With respect to property other than a dwelling, curtilage, or an occupied motor vehicle, a person is justified in using reasonable force against another person if the person reasonably believes that the force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in the person's possession, lawfully in possession of a member of the person's immediate family, or belonging to a person whose property the person has authority to protect. However, a person:

(1) is justified in using deadly force; and
(2) does not have a duty to retreat;

only if that force is justified under subsection (a).
...
(e) Notwithstanding subsections (a), (b), and (c), a person is not justified in using force if:

(1) the person is committing or is escaping after the commission of a crime;
(2) the person provokes unlawful action by another person with intent to cause bodily injury to the other person; or
(3) the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.

The above statute enshrines into our law the common law principle that you have the right to defend yourself and your house from unlawful entry.  There is no exception in the statute for police officers who might be doing the unlawful entering.   Unless there is a conflicting statute or the statute is somehow unconstitutional, that statute would apply and the Court is wrong in holding as it did. 

As I said previously, if the facts of the case lend itself to disposition there is no need for the Court to go forward and make sweeping declaration of new law.   Let's look at the facts as outlined in the Court's opinion:

On November 18, 2007, Richard Barnes argued with his wife Mary Barnes as he was moving out of their apartment. During the argument, Mary tried to call her sister but Barnes grabbed the phone from her hand and threw it against the wall. Mary called 911 from her cell phone and informed the dispatcher that Barnes was throwing things around the apartment but that he had not struck her. The 911 dispatch went out as a ―domestic violence in progress.

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.

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.

Unlike the infamous case involving Fred Sanders, there is nothing in the Barnes facts that suggest the police officers did anything wrong in entering the Barnes house.  They had no way of knowing if Mary had been threatened or would be harmed. They had every right under current law to continue their investigation into the family's apartment and Barnes had no right block their entry.  There was no need for the Supreme Court to address the issue it did, overturning hundreds of years of common law while ignoring the Indiana legislature's decision to enshrine that common law into the code of the State of Indiana in 1976.

The two dissenters, Justices Dickson and Rucker (Republican and Democrat if you're scoring at home) agree that the Court unnecessarily went too far.  Here's part of the Dickson dissent:

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. The case before us involves police action in response to a report of domestic violence in progress. Such events present a heightened urgency for police presence for the protection of the dwelling's occupants and to diffuse enraged emotions and animosity. It would have been preferable, in my view, for the Court today to have taken a more narrow approach, construing the right to resist unlawful police entry, which extends only to reasonable resistance, by deeming unreasonable a person's resistance to police entry in the course of investigating reports of domestic violence. Such a formulation would have been more appropriate for the facts presented and more consistent with principles of judicial restraint. Such a more cautious revision of the common law would have, in cases not involving domestic violence, left in place the historic right of people to reasonably resist unlawful police entry into their dwellings.

Here is a portion of Justice Rucker's take:

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 U.S. 573, 585 (1980). 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. 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.

What Justice Rucker is saying is that the common law right to resist unlawful police entry springs from the 4th Amendment, while the majority treats the common law and 4th Amendment case law as being separate.  Nonetheless, both Justices Dickson and Rucker agree that majority is overreaching, creating a new legal precedent where one is not necessary.

I agree with the dissenters.  The Barnes case appears to be good old fashioned judicial activism.  I can't say "conservative" judicial activism, because there are just as many conservatives as liberals, if not more, who decry the Court's intrusion on the right of homeowners to protect themselves and their property from unlawful police entry.  Rather this is pro-police judicial activism.  The majority goes out of its way to reach a holding that is completely unnecessary from the facts. The holding also appears to have overlooked a statute which would appears to directly contradict the Court's holding.  Again, there is no exception in that statute for police officers.  It appears to have been adopted by the General Assembly for the purpose of putting into the Indiana Code a long-standing common law principle that the Court has now thrown out with Barnes v. State.