Indiana Supreme Court Revisits Barnes Decision, Creates By Judicial Fiat Police Exception to Statute Giving Homeowner the Right to Prevent Unlawful Entry

Yesterday the Indiana Supreme Court released the long awaited rehearing opinion on Barnes v. State.  With all due respect to the justices, the majority is still wrong.


Indiana Supreme Court

In the original opinion, the Court said that the 4th Amendment and case law interpreting it did not allow homeowners to use force to resist an unlawful entry by a police officer.  While there is a problem with that original decision, the bigger problem to me was thatthe parties, the justices, and the justices' clerks, all missed the controlling statute, IC 35-41-3-2(b), i.e. the No Retreat Law, which provides the right to use "reasonable force, including deadly force, against another person...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."

In our federal system of government, states are always free to provide more rights to people than are guaranteed by the U.S. Constitution. Our federal constitution is not the ceiling on our rights; rather the constitution is the floor, the minimum amount of rights we are guaranteed.  At the point that a statute provides an individual  more rights than the constitution, the constitutional provision, i.e. the 4th Amendment becomes an irrelevancy.  All that discussion in both opinions about the 4th Amendment and its case law in the court's opinion is irrelevant.

The Court notes that the battery statute, IC 35-42-2-1(a)(1)(B), provides for an enhancement to a Class A misdemeanor when the victim of a battery is of a police officer.  In the rehearing opinion, the Court opines that the Attorney General has the right approach to interpreting the No Retreat Law in light of the police officer battery statute, i.e namely a homeowner can resist, but can never "batter" a police officer.

As any first year law student will tell you, a battery does not have to involve violence. Under Indiana's battery statute, there need only be a touching done in a "rude, insolent or angry manner" for there to be a "battery."  Violence is certainly not required for a battery.  Therefore, how can the homeowner "reasonably resist" if pretty much any touching of a police officer is going to be considered a battery? The answer is the homeowner can't.  Under the position supported by Attorney General Zoeller and adopted by the Indiana Supreme Court, the homeowner's only recourse is to ask the police officer who illegally entered the house to leave. 

Let's return to the battery statute that the Court concludes carves out an exception to Indiana's No Retreat statute when the person entering unlawfully the home is a police officer.  Indiana's battery statute isn't confined to police officers, it applies to everyone.  So why wouldn't the exact same reasoning apply to non-police officers who unlawfully enter a home, i.e  reasonable resistance of the homeowner cannot include "battery" of the intruder?


Attorney General Zoeller argued against a homeowner's
right to use force to repel unlawful entry by police officer

Using the battery statute to carve out an exception to Indiana's No Retreat Law effectively obliterates the law, rendering it meaningless.   The legislature did not carve out an exception for police officer intruders when it drafted the No Retreat Law and certainly, as noted above, the battery statute does not provide for the rationale for a judicially-created exception. 

While the Court's decision notes valid policy reasons for having an exception in the statute for police officers, that is a decision that should have been left to the legislative branch.  While the Court notes it will bow to any legislative clarification of the law, the fact is the Court by judicial fiat created a statutory exception where one clearly does not exist. That is exactly the type of judicial activism we conservatives have long criticized.

It is apparent to me that the Indiana General Assembly intended the No Retreat Law to be a defense to the crime of battery and thus, when the facts warrant it, an instruction on the law should be given.
The facts of the Barnes case seem to clearly justify the police officers entering the premises to find out what was going on in that domestic dispute. Therefore, one has to wonder why the Court didn't just decide the issue on the facts of the particular case, using existing law.  The Court could have said that the instruction on to defend one's home was not supported by he facts or that the failure of the trial court to give the instruction was harmless error. 

Instead the Court chose to address broader issues, effectively stripping homeowners of the right to resist an unlawful entry by a police officer. I think the decision to needlessly delve into this area could well be due to leftover resentment from the 1988 incident involving Catholic high school teacher Fred Sanders case in which a police officer who broke into Sanders' home was shot Sanders.  Although that case was early in my legal career, I can still remember how deeply divided the community was on what happened.

Fortunately the erroneous Barnes decision is fixable. The legislature just needs to come back and make clear when it says a homeowner can use force against "another person" in the No Retreat Law, that means everyone including police officers.  The legislature shouldn't have to do that but after yesterday's decision it needs to be done.