Police Entry: Rehearing Doubtful

June 6, 2011

For release June 9 and thereafter (670 words)

Gov. Mitch Daniels, Attorney General Greg Zoeller, House Speaker Brian Bosma, Senate President Pro Tem David Long and the attorney for a man convicted of battery on a police officer all agree: The Indiana Supreme Court went too far when it ruled 3-2 “that there is no right to reasonably resist unlawful entry by police officers.”

The misdemeanant wants the court to rehear the case. And at least one lawyer-blogger says, “it seems almost a sure thing” that the court will reconsider its ruling and narrow its opinion.

It seems more likely the justices will hold their ground. The May 12 decision is an extension of prior case law concluding there is no right to resist unlawful arrest, a policy firmly in place by statute or court ruling in 38 states. To expect the justices to reverse themselves — just because the legislative and executive branches want them to  — seems a long shot.

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.

To the extent a right to resist has been acknowledged by the U.S. Supreme Court, it’s based on English common law that developed since the Magna Carta of 1215  — a time when government power was unchecked and citizens had no recourse against arbitrary searches.

The state high court acknowledged the long history yet found “that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence.  Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action.”

As examples of  “means” by which citizens can challenge improper police conduct, the court cited modern legal protections such as bail, prompt arraignment with probable cause determination and the exclusionary rule, which says evidence obtained during an illegal search can’t be used at trial.

The court continued, “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest—as evident by the facts of this instant case.“

The case began in 2007 when Evansville police responded to a woman’s 911 call reporting a domestic disturbance involving her husband. The suspect, Richard L. Barnes, attempted to block entry to his home when officers arrived. As one officer forced his way in, Barnes shoved him against a wall. Eventually police used a chokehold and taser on Barnes and arrested him for battery, resisting law enforcement and disorderly conduct.

Here’s the dilemma. How many citizens, in the heat of the moment, would know whether an entry was lawful? Considering that virtually all police are armed with guns and tasers – and 40 percent of Americans report having a gun in their homes or on their property – the risk of harm to police or citizens is enormous. Yes, police can and do abuse their power, but the best way to stop that is in the legal system, not with fisticuffs.

Critics have berated the court for judicial activism that gutted the Fourth Amendment. If the court had ruled the other way — that citizens can resist entry to their homes if they think police are acting illegally — the same activist complaint could have been raised. Since when do citizens have a right to commit battery on police?

This is a matter of state policy that should be decided by lawmakers in consultation with the public — relying on statistical analysis and cool heads. That the court has received death threats for its opinion is unconscionable and a reminder why we have legislatures and courts in the first place: We are a government of laws and not bullies, whether they be the public or the police.

Andrea Neal is adjunct scholar with the Indiana Policy Review Foundation. Contact her at aneal@inpolicy.org.

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