September 22, 2011


 A Critique of  Judge David’s September 2011 Indiana Supreme Court Opinion  Upholding the   Conviction of a Homeowner  for Resisting Illegal Entry by the Police


             Below is the September opinion in the rehearing of Barnes v. Indiana.  I disagreed with the initial opinion in May, but what is noteworthy about the new opinion is its poor legal craftsmanship and how it obscures rather than clarifies.  The May opinion had shocked everyone because Justice David, writing for the majority, had gone further than the prosecution asked, and in overruling the Court of Appeals had declared that it was abolishing Indiana’s common law rule that a citizen could use reasonable force to repel illegal entry, even if the intruders were policemen.   There was widespread public outrage and legislators said they would overrule the Court by passing a new law.


            The defendant, Barnes, asked the Court to reconsider  in a process known as a “rehearing” though it usually does not involve new oral argument.  Barnes submitted a brief arguing that for the Court to change the law in this way, and do it retroactively, violated citizens’ protections against ex post facto laws and illegal searches.   The Attorney General  submitted a brief asking the Court to clarify what it had done but arguing that it should stick with its abolition of right to  use reasonable force to prevent illegal police entry.  A group of 71 state legislators argued in an amicus brief that the court hadn’t noticed that there was a statute authorizing citizens to use force to repel illegal entry, not just a common law rule.  A group of 5 scholars including myself argued in an amicus brief that for various reasons it was unjust and inadvisable to eliminate the common law right to repel illegal police entry and that in any case Indiana’s “reception” statute barred the Supreme Court from eliminating ancient common law rights.


            Here’s how the Court responded.  My comments are interspersed in red.




In the Indiana Supreme Court


No. 82S05-1007-CR-343


Appellant (Defendant below),



Appellee (Plaintiff below).


September 20, 2011

David, Justice.


            When law enforcement officers responding to a “domestic violence in progress call” arrived at the scene, the husband, about whom his wife had made the 911 call, got physical with the responding police officer. A jury found Richard Barnes guilty of battery on a police officer and resisting arrest. We earlier affirmed his conviction, and he has petitioned for rehearing. In addition, the Attorney General has requested rehearing, as have amicus curiae members of the Indiana General Assembly, who urge clarification or modification of our prior ruling.


            This is basically correct, though there was more than one responding police officer and it is odd to describe Mr. Barnes as  getting physical” with the police officer. Sounds a bit obscene, doesn’t it? Why not say that he shoved the police officer and mention that he shoved him because the officer was trying to force his way into his home without a warrant,  with no crime in progress,  and in spite of his objections? Perhaps the husband’s getting tasered and sent to the hospital is worth mentioning too, though not strictly relevant to the claim.  


            The petitions for rehearing, advanced by thoughtful people, have convinced us that the appropriate course is to grant rehearing and speak further on the law of this case.


              “Thoughtful people” is an odd term to use for the Attorney General and the members of the Indiana General Assembly. Thoughtful they may be, but wouldn’t “distinguished” be more suitable?


            At the heart of this appeal has been the suspected spouse abuser’s contention that the trial court erred when it refused to instruct the jury that he had the right to get physical with the police officers if he believed their attempt to enter the residence was legally unjustified.


            Wrong.  What he argues is that he had the right to use the minimum necessary force to repel police officers if their attempt to force their way in was illegal.   He didn’t ask to be let off  based on his belief, but on the facts--- that he had a right to resist  the police  if the jury decided that the entry was unlawful given the lack of a search warrant or crime in progress but given the police desire to talk with his wife inside the apartment.  The Barnes brief says the issue is “the right to reasonably resist unlawful entry by police officers into a residence.”   Barnes did not  contend that he had the right to resist “if he believed their attempt to enter was legally justified.”  


            And what’s with calling Mr. Barnes “the suspected spouse abuser”?  He wasn’t arrest for spouse abuse, and  neither his wife nor anybody else claims he hit her. She was scared because he got angry and slammed the phone against the wall.  At the time, to be sure, the police feared he might be a spouse abuser, but they  found out he wasn’t.  They also must have had at least some  fear that he might be a murderer—for all they knew before they arrived, he’d killed his wife—but that wouldn’t justify a judge calling him  “the suspected wife killer”.


            Neither the trial court, nor the Court of Appeals, nor this Court have agreed with Barnes that the officers violated any statute or any provision of the state or federal constitutions when they sought entry, at the wife’s request, to investigate and ensure the wife’s safety.


            What the three judges of the Court of Appeals said was: “For  all  of  these  reasons,  we  conclude  that  the  evidence  reasonably  supports the conclusion that Officer Reed's attempted entry into Barnes's apartment was unlawful.” Their  reasoning is carefully laid out, with quotes from the transcript and relevant case law, unlike the Supreme Court’s vague assertions about police discretion.


            To be sure, no charges were brought against the officers for illegal entry, but that’s part of Barnes’s point:  prosecutors are reluctant to endanger their relationship with police departments, and it isn’t clear whether a court would convict anyway, if the officer did not commit the crime for personal gain.


            Also, why did the Court write “at the wife’s request”? That’s irrelevant.  It’s well-established, as the Court of Appeals explained,  that the police can’t enter a joint residence if one resident objects, even if the other resident invites them.  Moreover, it wasn’t at her request. The Court of Appeals quotes the police officer himself  as saying, “She never said, you know, let them in, she didnt say dont let them in.  She . . . was more or less trying to get him I think to cooperate.”


            And why say “ensure the wife’s safety”?  The husband and police were outside of the apartment and the wife was inside. When the police arrived, in fact, Mr. Barnes was outside the building, in the process of leaving, but he came back in the building arguing with them.  If the wife feared for her safety, she could have closed the door and been alone, or she could have gone outside with the policemen.


            The central question we addressed earlier was whether the defendant was entitled to have the jury told that the common law right to defend one’s home against invasion was a defense against Indiana’s statute that criminalizes violence against police officers acting in the course of their duties. The legislature has declared it to be a Class A misdemeanor when one commits battery on a law enforcement officer “while the officer is engaged in the execution of the officer’s official duty.” Ind. Code § 35-42-2-1(a)(1)(B) (2008).[1]


            This is probably correct, if we say that a policeman can be acting illegally “in the course of his duty.”  If a policeman threatens to shoot a robbery suspect  unless he forks over money, is he acting “in the course of his duty”?    “Yes” is a possible answer, one consistent with the law of agency and of workmen’s compensation.  That’s the kind of definition of “in the course of his duty” needed here: that the policeman was wearing his uniform and engaged in a police task,  and the action’s illegality was  not inconsistent with it being performed “in the course of duty”.


            Barnes’s demand for this instruction has rested solely on the common law rule that “a man’s home is his castle,” which gives him the right to reasonably resist unlawful entry. The amicus legislators additionally cite a statute not pleaded by Barnes which creates a defense to crimes of violence, authorizing a person 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 unlawful entry of his dwelling or occupied motor vehicle. I.C. § 35-41-3-2(b). As will appear below, the Attorney General’s analysis of this statute speaks to the same point raised by the amicus.


            True. Barnes should have cited the statute too, but he didn’t, perhaps because he thought, correctly at the Court of Appeals, that on appeal that he’d win easily based on just the common law rule.  The Supreme Court admitted in its May decision that prior to that decision the common law rule was valid in Indiana.  Barnes couldn’t be expected to know that the Court was going to unexpectedly change the law he was relying on.   The prosecution hadn’t even asked for that, and they were surprised too.


            Even if Barnes and his public defender hadn’t mentioned the statute,  I would have hoped that the trial judge, the county prosecutor, the Attorney General, and the Supreme Court would have thought of it. The statute was passed fairly recently, with lots of media attention, so even many non-lawyers knew about it.  Understandably, members of the General Assembly were miffed that they’d passed a law and the government lawyers were just ignoring it.  The prosecutors and judges might reply that it’s not their job to help the defense, but that’s not quite right.  To be sure, the prosecutors are supposed to try to win the cases they bring, and the judges do not have the time to do legal research to fix up the defense’s mistakes.  But public servants are supposed to uphold the laws.  The job of a prosecutor is not to convict as many people as possible, regardless of  true guilt,  it’s to convict as many guilty people as possible.  And the job of a judge is to make sure each side presents its case as well as possible.  It’s not against the rules for a judge to point out something one side missed and suggest that it be included.  


            The Attorney General’s response to Barnes’s petition for rehearing urges that this right should remain intact but likewise urges that “reasonable resistance does not include battery or other violent acts against law enforcement.”


            Well, how can you resist if you don’t touch  the officer—which is all that is needed for battery? Remember: “violence” here includes the mere pushing of a police officer. What’s left for resistance if that is criminalized?  For myself, I think “reasonable resistance” depends on the situation. If a policeman is trying to rape someone, for example,  pushing him away ought to be considered reasonable. I’d even say that shooting him would be reasonable in such a case—even though shooting a rapist policeman is a violent act against a law enforcement officer.


            We deem the Attorney General to have restated the central thesis of our resolution of this case. As he says,


Tense and even dangerous police-citizen encounters fit no limited pattern; reactions and decisions are made in the split second, and each incident is unique.  The hindsight, after-the-fact evaluation by the judiciary is inherently a case-by-case process, but our courts have shown themselves equal to the task as they strike the correct balance between safety and privacy.


            Nice mutual flattery.  The Court admires the Attorney General,  a potential  powerful critic, and the Attorney General admires  the courts who are so “equal to the task as they strike the correct balance”.   The idea that both are pushing here is that there shouldn’t be general rules saying what policemen can and cannot do; instead, the courts will decide on a case-by-case basis. Rule of law versus rule of men, anyone? Note, too, that when it comes down to case-by-case circumstances, the law traditionally has left it to citizen juries to determine what is reasonable, as a question of fact, since saying “In this particular case, without using any general rule, I think the police acted reasonably” is hardly worthy of being called a  general law. 


            The Attorney General is correct that making such decisions is inherently a matter based on fact, but whether a criminal defendant may be excused from a crime created by statute is a matter of general law. Consistent with his earlier point, we hold that the Castle Doctrine is not a defense to the crime of battery or other violent acts on a police officer.


            If it’s based on fact, then let the jury decide. That’s all Barnes was asking for.


            Our holding does no more than bring Indiana common law in stride with jurisdictions that value promoting safety in situations where police and homeowners interact. Importantly, we observe the actions in this case were “appropriate to a rapidly unfolding situation in the immediate aftermath of a reported” domestic violence situation. Commonwealth v. Gomes, 795 N.E.2d 1217, 1222 (Mass. App. Ct. 2003) (refusing to grant a jury instruction on the right to forcibly resist an unlawful police entry).


            So the Court thinks the problem with Indiana law is it’s not enough like Massachusetts law.  Letting their feelings slip out that way is not a good political move.


            Note, too, how empty the statement here is. Just why does the court think the actions here were appropriate?  That’s a pretty central point. The three judges of the Court of Appeals explained in detail why  they thought the police actions were not appropriate. Why does the Supreme Court disagree?  In general, compare the legal craftsmanship of the Court of Appeals opinion with the Supreme Court one, especially in the care and respect with which it  explains why it thinks the other side’s arguments are wrong.


            We also emphasize that this holding does not alter, indeed says nothing, about the statutory and constitutional boundaries of legal entry into the home or any other place. Our earlier opinion was not intended to, and did not, change that existing law about the right of the people to be secure in their persons, houses, and papers against unreasonable searches and seizures. U.S. Const. amend. IV; Ind. Const. art. 1, § 11. This also reflects the basis for our holding about defenses available to criminal defendants charged with violence against police officers: the ruling is statutory and not constitutional. The General Assembly can and does create statutory defenses to the offenses it criminalizes, and the crime of battery against a police officer stands on no different ground.


            Here’s more obfuscation.  First, the court seems to be saying that the police entry was  appropriate, though without  saying why it was okay to enter without a warrant or a crime in progress.  As best we can see, it’s saying that police can do no wrong if the case is a domestic violence one; the Court certainly has not said what the bounds of illegal entry are.  Now, though, the Court is saying that Barnes has no implications for what police entry is legal. How about a cite or two of previous cases that have authorized this kind of  entry?  


            The Court is shameless in saying that it can’t let Barnes off  because it’s bound by statutes of the General Assembly. The Court has just been talking about a General Assembly statute that allows citizens to defend against unlawful entry. The statute mentions no exception for the case where police officers are the intruders. 71 members of the General Assembly have complained to the Court and pointed out that they didn’t mean to exclude police illegality. The Court has given no reason in legislative language or intent for creating an exception for police. All it’s done is quote a police boss (the Attorney General)  who says he thinks  the law shouldn’t allow physical resistance to his employees  (and those of other executive branch officials) even if they’re breaking the law.


            What the statutory defenses should be, if any, is in its hands.  


            Well, the statutory defenses aren’t   in its hands if  it writres an unambiguous law and the courts insert a clause saying “except for police officers”.   I suppose the General Assembly can insert a clause saying “And this includes police officers, and judges, and other officials, and FBI agents, and CIA agents, and we don’t mean by mentioning just these people that there’s someone else who’s exempt.”   Maybe they should do that in every law. Will the Court next say that since the Indiana state income tax laws don’t specify that police officers are included, they don’t have to pay taxes, since it’s very important that police officers have enough take-home pay?


            Having granted rehearing and restated the essential holding in this case, we continue to affirm Barnes’s conviction.


            The opinion is surprising in what it omits as well as how skimpily it treats what it does mention.   It at least mentions the argument in the legislators’ amicus brief that the Castle Doctrine statute protects Barnes, even if  only to assert without legal justification that police officers ought to be exempt.  But take a look at Barnes’s brief.  It’s at .  Here are the main headings:


A. In finding that there is no right to reasonably resist unlawful entry by   police officers into a residence, this Court's opinion conflicts with the 4th  Amendment of the U.S. Constitution .


B. In finding that Barnes was not entitled to a jury instruction on the right  to resist unlawful police entry into his residence, this Court's opinion  punishes Barnes Ex Post Facto in violation of the Due Process Clause  of the 5th Amendment to the U.S. Constitution, made applicable to the States by the 14th Amendment, and Marks v. United States, 430 U.S. 188, 191,97 S. Ct. 990, 51 L. Ed. 2d 260 (1977)                 


C.  In upholding Barnes's conviction for Disorderly Conduct, this Court's opinion conflicts with the 1st Amendment of the U.S. Constitution, with  Article I, Section 9 of the Indiana Constitution, and with this Court’s prior holdings in Price v. State, 622 N.E.2d 954,958 (Ind. 1993) .


            Are you wondering why you don’t remember any of these constitutional claims from Justice David’s opinion? It’s because he ignored them. He did a little obfuscation of his May opinion, made a small mention of the legislators’ amicus brief, and ignored what the defendant was asking about.


            The scholar amici of whom I am part found a relevant case and submitted it to the court, which duly accepted the submission and filed it away.  In   Ray-Hayes v. Heinamann, 768 NE 2d 899 (In. 2002), the Court said that a surprising new rule was not to be applied retroactively even in a civil case. (“Dismissal of her complaint as a result of her understanding of the rule, which was shared by some respected authorities on Indiana law, is a particularly harsh result.”)[2]


.           After reading this, perhaps you’ll agree that  Justice David’s September opinion is more  obfuscation than  clarification of  his  May opinion.  He realized that stating clearly that he was abolishing an ancient right of citizens and mentioning the Magna Carta was a mistake. The Court needed to do something to respond to public outrage, and here we have the result--- something sufficiently unclear that it would be harder to object to.  Bureaucratic equivocation  may hurt the Court’s reputation among lawyers, but it provides nothing for the news media to grab onto.


Shepard, C.J., and Sullivan, J., concur.

Dickson, J., concurs in result.

Rucker, J., dissents with separate opinion.


            Why is Dickson concurring in the result but not in the opinion?   He dissented in May--- what has happened to his thinking since then?   Couldn’t he be bothered to tell us how he can agree with something that has “restated the essential holding” that he disagreed with before, and why he disagrees with the new reasoning?


Rucker, Justice, dissenting.


            I agree rehearing should be granted in this case. However I disagree with the Majority’s resolution. There appears to be some tension between Ind. Code § 35-42-2-1(a)(1)(B) making it a criminal offense to commit battery on a law enforcement officer “while the officer is engaged in the execution of the officer’s official duty,” and Ind. Code § 35-41-3-2(b) providing persons the right to use “reasonable force . . . 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.”


            “Some tension”?  Why not say “contradiction”?  A little tension is no reason to dissent.


            I would grant rehearing to explore whether, as a matter of Indiana statutory law, defendant Barnes was entitled to a jury instruction regarding police entry into his home.


             Yes, it would be nice to have oral argument  and enough time for full briefing on what has to be a major part of deciding this case.  Remember: the May decision was totally unexpected, and neither side had enough time to react to the sudden change in law that the Supreme Court created  and write as complete a brief as would be appropriate--- the rehearing petition deadline was one month, if  I recall correctly. 


[1] Courts have long understood that the legislature intended battery on a law enforcement officer to require proof that the officer was engaged in official duties. See Tapp v. State, 406 N.E.2d 296, 302 (Ind. Ct. App. 1980) (“[I]t is the nature of the acts performed and not whether the officer is on or off duty, in or out of uniform, which determines whether the officer is engaged in the performance of his official duties.”).


True, though the footnote is unnecessary.  Barnes admits that the officers  were on duty and in uniform.

[2] Our scholar’s brief had more arguments which the Court ignored. See