No Right to Resist Rogue Cops in Indiana


On Monday Damon Root noted an 8-to-1 decision in which the U.S. Supreme Court said police may force their way into a home if they smell burning marijuana and hear what they think is the sound of contraband being destroyed after they knock on the door. Last week the Indiana Supreme Court said, in effect, that police may force their way into a home for any reason or no reason at all. Although the victim of an unlawful search can challenge it in court after the fact, three of the five justices agreed, "there is no right to reasonably resist unlawful entry by police officers." They thereby nullified a principle of common law that is centuries old and arguably dates back to the Magna Carta.

The case stemmed from a domestic dispute:

Richard Barnes argued with his wife Mary Barnes as he was moving out of their apartment. During the argument, Mary tried to call her sister but Barnes grabbed the phone from her hand and threw it against the wall. Mary called 911 from her cell phone and informed the dispatcher that Barnes was throwing things around the apartment but that he had not struck her. The 911 dispatch went out as a "domestic violence in progress."

The first officer on the scene encountered Richard Barnes outside the apartment. Barnes said he was leaving and the police were not needed, but he was "very agitated and was yelling." Mary Barnes came out to the parking lot, threw a duffle bag in her husband's direction, and told him to collect the rest of his belongings and go. He followed her back into the apartment, whereupon two officers tried to enter and he blocked the way. Although "Mary did not explicitly invite the officers in," she "told Barnes several times 'don't do this' and 'just let them in.'" When one officer tried to enter the apartment, "Barnes shoved him against the wall" and "a struggle ensued." The officers "used a choke hold and a taser to subdue and arrest Barnes," who "suffered an adverse reaction to the taser and was taken to the hospital."

Barnes was convicted of battery on a police officer, resisting law enforcement, and disorderly conduct. He appealed his convictions on the grounds that the jury should have been instructed about "the right of a citizen to reasonably resist unlawful entry into the citizen's home." The Indiana Supreme Court, however, concluded that "public policy disfavors any such right," since "resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."

Dissenting Justice Brent Dickson argued that "the wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad." Given the circumstances of Barnes's arrest, he said, the court could have ruled that "a person's resistance to police entry in the course of investigating reports of domestic violence" does not qualify as "reasonable." The other dissenting justice, Robert Rucker, argued that the right of reasonable resistance is grounded in the Fourth Amendment as well as common law.

Unless I'm missing something, the court need not have addressed this issue at all. It could simply have ruled that the officers' entry into the apartment was lawful in light of the exigent circumstances created by the domestic dispute and the possibility of violence, especially since Mary Barnes had called 911 and arguably invited them in. The majority suggested as much but inexplicably decided the much broader question of whether Richard Barnes would have been entitled to resist if the entry had been illegal. "Because we decline to recognize the right to reasonably resist an unlawful police entry," the majority said, "we need not decide the legality of the officers' entry into Barnes's apartment."

That seems backward to me, and it suggests a hankering to repudiate a principle that strikes the justices as an outmoded impediment to law enforcement but strikes me as a straightforward extension of the fundamental right to self-defense. According to the court's reasoning, a homeowner would not even have a right to defend himself against rogue police officers who robbed people under the cover of official business. Indeed, the concern about escalating violence would count against the right to defend yourself against anyone, with or without a badge.

The full text of the decision is here (PDF).

[Thanks to David Harsanyi for the tip.]