Wednesday, June 8, 2011

Columnist Andrea Neal Gets Law on Unlawful Entry Wrong; Ogden on Politics Suggests Appellate Courts Hire More Experienced Attorneys as Clerks

Columnist Andrea Neal
Andrea Neal, who writes for the Indianapolis Star and other publications recently penned a column in support of the Barnes v. State ruling.  Neal suggests that the legal conclusion of the Supreme Court was well-founded and doubts that it will be overturned on rehearing.   Neal's column contains the following paragraph:
No language in the Constitution gives citizens an explicit right to resist unlawful entry. The Fourth Amendment requires police to have probable cause in order to search "persons, houses, papers and effects." It doesn't necessarily follow that homeowners can do whatever they deem reasonable to protect themselves from a Fourth Amendment violation. If Indiana legislators want to enshrine such a right, they'll have to pass a law or state constitutional amendment saying so.
Actually that is exactly what the Indiana General Assembly did in 2006 when it passed Public Law 189-2006, the so-called "No Retreat" law. That law amended IC 35-41-3-2(b), to make clear that a person has no duty to retreat before using reasonable force to deter an unlawful entry:
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 absolutely no exception in the statute for police officers who do the unlawful entry.

Neal talks about the 4th Amendment, the Magna Carta and the common law discussed in the Court's opinion.  And, you know what?  None of that matters.  One of the most basic legal principles is that a state can always give you more rights that what you might have under the Constitution or common law.  That is exactly what the legislature did in passing PL 189-2006.   All that legal discussion in Barnes v. State was irrelevant...there is a statute on point and that statute controls.  Game, set, match.

In Barnes v. State, the Court never mentions the statute that allows residents to use reasonable force to repeal unlawful entries.  I am not the only one who has pointed out that the Court overlooked the statute.   Governor Mitch Daniels expressed confusion over why the Court ruled the way it did in light of PL 189-2006.

So am I saying that five justices on the Indiana Supreme Court (including the dissenters) simply overlooked a statute that was controlling?  Yep, that's exactly what I'm saying. How could that happen?  I can speak somewhat from experience having clerked at the Court of Appeals, although every judge handles appeals differently.

When an appellate clerk gets assigned a case, he or she relies heavily on the legal authorities submitted in the briefs.  After all those attorneys, and the trial court, have been dealing with the case for months if not years and should know what law applies.  I reviewed the State's petition to transfer and the Defendant's response and wrote about it, including Attorney General Greg Zoeller's disingenuous public response to Barnes saying he only wanted a limited decision.   Attorneys on both sides in Barnes discussed a 2004 decision (which predated the changes to the statute) and other case law.  None of that case law dealt with the newly-revised IC 35-41-3-2(b).  Apparently neither side in the case was even aware of the statute.  The Indiana Law Blog has been gracious enough to publish links to the briefs.

An appellate court is not obligated to, sua sponte, consider legal arguments that the parties fail to make in their briefs. The process from the initial draft on is generally judges and clerks reviewing what has been written, not going outside of that to catch statutes and case law that have been overlooked.
Now the Indiana Supreme Court has a choice.  Does it take the case on rehearing and admit it missed the statute?   The Court could do so and still use the particular facts of the case to find in favor of the police, without the unnecessary expansive ruling which in fact is contrary to an existing state statute.  But for the Indiana Supreme Court to admit it made such a big mistake, well that's difficult.

What could have been done differently?  I would suggest appellate courts, instead of recruiting new attorneys as clerks, start looking to hiring more experienced attorneys.  You really learn law by practicing it, not from law books.  A seasoned attorney of 10-15 years, is probably going to be a much better clerk than someone who is fresh out of law school.  An experienced attorney, acting as a clerk, might have thought outside the box and checked into whether the parties missed something in their briefing  In Barnes v. State, they clearly did.


varangianguard said...

But, more expensive.

Paul K. Ogden said...

Not reallyt. Varan, you'd be surprised the number of experienced attorneys who would kill for a clerkship. So many attorneys out there are barely getting is too saturated.

I bet they get paid $50K a year, maybe more. You advertise a $50K a year attorney job with great benefits, you'd get 100 resumes easy.

Paul K. Ogden said...

They're probably closer to $60K. I was at $44K when I left in 1994. The public sector attorney salaries have done a lot better than private sector salaries over the last 20 years.

Unigov said...


A.N. writes some good stuff but several years ago she penned an article on anti-depressants that could be summed up as "hey loser, buck up !". I saved this somewhere in my pile of clippings. Because depression is a medical condition, as in brain chemistry gone awry, her article was equivalent to telling quadraplegics to "Get up and walk !".

Infantile pablum.