Wednesday, May 25, 2011

Barnes v. State: Why the Constitution Doesn't Matter

Today I attended a rally at the Indiana Statehouse, a protest against the Indiana Supreme Court's opinion in Barnes v. State which held that "the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law."

Most of the discussion at the protest rally centered on the importance of upholding the Constitution and how the decision rips apart the 4th Amendment while ignoring hundreds of years of precedent.  But in fact, the Constitution, as well as the case law discussed by the majority in the opinion, are irrelevant.

That the Constitution doesn't matter might come as a shock to those who attended the rally.  However, one of the most fundamental principles of federalism is that states are always free to give you more rights than what is provided by the Constitution.  In 2006, the Indiana General Assembly did passed Public Law 189-2006, the so-called "No Retreat" law.  Here is how that law is summarized on the Clark County Prosecutor's website:
P.L. 189-2006 amended the self-defense statute, IC 35-41-3-2, to make clear that a person has no duty to retreat before using force or deadly force...
IC 35-41-3-2(b) states:
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.
There is no exception in the law for police officers who do the unlawful entry.   With the adoption of the statute, it doesn't matter that the Constitution may not provide protection to the homeowner against the law enforcement officer entering the home unlawfully.  Again, states are always free to provide more legal protections than that mandated by the Constitution.  Unless the statute is contradicted by another statute or is somehow unconstitutional, then the statute would control.   The court appears to have completely missed IC 35-41-3-2(b) in its analysis in Barnes.

Governor Daniels was also confused by the Court's overlooking the no retreat law, i.e. IC 35-41-3-2(b).  The Indiana Law Journal reports:

Earlier today at Gov. Daniels’ media availability at IUPUI, reporters asked him for his thoughts about the recent Indiana Supreme Court decision regarding illegal entry. The governor said he was puzzled by the ruling.

To expand on that comment, David Pippen, the governor’s general counsel, said this afternoon the governor’s questions relate to the no retreat law the governor signed in 2006, which seems to be in conflict with the ruling and would trump the case law basis for the court’s determination. That statute was not raised during the course of the case. The no retreat law unequivocally strengthened the rights of Hoosiers to be secure in their homes, and the existence of the statute seems to provide ample reason for a rehearing.
Looking at the facts of the case, the police officers' entry seems perfectly justified under existing law.  There seemed to be no need to create new 4th Amendment law.  Nonetheless, the 4th Amendment doesn't matter once the Indiana General Assembly passes a law giving homeowners the right to prevent or terminate an unlawful entry.  I am not sure how the Court overlooked IC 35-41-3-2(b).

1 comment:

Cato said...

Courts don't consider themselves bound by statute.

Indeed, courts scoff at statutes as the popular pronouncements of the baser classes.

As they view it, the real law is drafted at the judges' desks, where the desires of the rabble, expressed in statute, are given some weight and metered against what the "proper" outcome ought to be.

The Indiana Code is free to impose speed limits and licensing fees, but the real laws, the true soul of government, is voted on and enacted into law in the Supreme Court Reporters.

Did it not escape you that in law school if you dared to answer a question with a statutory cite that the "professors" would roll their eyes at you?

Statutes may come and go, but the court views itself as taking the long view and creating the enduring law.

From Thomas Jefferson:

"You seem... to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is "boni judicis est ampliare juris-dictionem," and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions or time and party, its members would become despots." - Letter to William Jarvis, September 28, 1820