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
RICHARD L.
BARNES,
Appellant
(Defendant below),
v.
STATE OF
INDIANA,
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 didn’t say don’t 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 http://goo.gl/707id
. 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 http://rasmusen.org/special/barnes/0-Amicus.pdf.