A man’s home is his castle. Or at least it was. Now a man’s home is his complex, limited, statutory 4th Amendment defense. Sort of. So where does Indiana stand now on the issue of a person’s response to an unlawful police entry into a home?
The Indiana Supreme Court’s Barnes decision last year was the most talked-about Indiana legal development in a decade that does not answer impenetrable legal questions like: “What time is it?” or “Who is your Secretary of State now, anyway?”
You may recall, Barnes involved police entry into a home following a 911 call. The Court related the facts as follows:
On November 18, 2007, 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.”
Officer Lenny Reed, the first responder, saw a man leaving an apartment with a bag and began questioning him in the parking lot. Upon identifying the man as Barnes, Reed informed him that officers were responding to a 911 call. Barnes responded that he was getting his things and leaving and that Reed was not needed. Barnes had raised his voice and yelled at Reed, prompting stares from others outside and several warnings from Reed.
Officer Jason Henry arrived on the scene and observed that Barnes was “very agitated and was yelling.” Barnes “continued to yell, loudly” and did not lower his voice until Reed warned that he would be arrested for disorderly conduct. Barnes retorted, “if you lock me up for Disorderly Conduct, you’re going to be sitting right next to me in a jail cell.” Mary came onto the parking lot, threw a black duffle bag in Barnes’s direction, told him to take the rest of his stuff, and returned to the apartment. Reed and Henry followed Barnes back to the apartment. Mary entered the apartment, followed by Barnes, who then turned around and blocked the doorway. Barnes told the officers that they could not enter the apartment and denied Reed’s requests to enter and investigate. Mary did not explicitly invite the officers in, but she told Barnes several times, “don’t do this” and “just let them in.” Reed attempted to enter the apartment, and Barnes shoved him against the wall. A struggle ensued, and the officers used a choke hold and a taser to subdue and arrest Barnes. Barnes suffered an adverse reaction to the taser and was taken to the hospital.
Barnes v. State, 946 N.E.2d 572, 574, reh’g granted (Sept. 20, 2011), adhered to on reh’g, 953 N.E.2d 473 (Ind. 2011). At no point does the Supreme Court explain the difference between an “adverse reaction” to a Taser, and a Taser that–technically speaking–“works.” Aren’t tasers supposed to cause adverse reactions? But I digress.
Barnes was charged with multiple misdemeanors, including resisting law enforcement. At trial, Barnes’s attorney requested that the jury be told about the “common law” (read: really old) right to resist unlawful entry into one’s home. The trial court refused, Barnes was convicted, and then appealed. The Court of Appeals agreed with Barnes, and the state then convinced the Supreme Court to hear the case.
Barnes Decision and Analysis
The Supreme Court went into no small amount of detail on the history of the right to resist unlawful entry into one’s home, noting that some commentators trace the right to the Magna Carta in 1215. It cited concerns for police safety, and the fact that today’s victims of illegal police entry have rights (e.g., civil rights lawsuits) that did not exist in Ye Olden Times that both discourage illegal entry and attempt to make a victim whole. Ultimately, the decision and the resulting controversy boiled down to this statement:
We believe . . . that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence.
Barnes, 946 N.E.2d at 576. Although many states (the Court claims a majority, in fact) had already reached the same decisions, most had done so more subtly, gradually pushing the concept to the edge of utility without a glaring, headline-bait tone.
I always get the willies when a court starts its analysis with the Magna Carta. I’m reminded that Howard Hughes’s doomed and unsustainable Spruce Goose needed a very long runway, too.
Although much of the criticism of the case was simply inaccurate, Barnes is actually a useful civics lesson on legislative responsiveness and judicial restraint. Some critics miscast Barnes as a case about police action rather than citizen response. One Indiana Sheriff even suggested that his deputies would no longer have to obtain search warrants to enter into homes of citizens. Of course, nowhere in Barnes are the police given any new rights involving the 4th Amendment’s warrant requirement or entry into private homes. At most, Barnes gave the police an expectation that if they were entering a home illegally and if that entry were resisted by a private citizen, that a charge such as resisting law enforcement might still stick. That’s a far cry from making illegal police actions legal.
It’s also hard to imagine how the Barnes decision might change police behavior. There are already significant disincentives to illegal home entry by police. First and foremost, the exclusionary rule requires courts to exclude evidence obtained through illegal searches, making it a possible waste of police time and effort, often fatal to the State’s subsequent criminal prosecutions. Second, unannounced illegal entries pose a significant physical risk to police officers. Third, the rise in civil rights litigation puts law enforcement on a very thin line between aggressive investigation and exposing already cash-strapped municipalities to liability. Whatever else it was, Barnes was not a short cut around the 4th Amendment.
The Castle Rule
Although the phrases “Castle Doctrine” or “Castle Rule” do not appear anywhere in the first Barnes decision handed down May 11, 2011, it is the logical historical opponent to the reasoning in Barnes. The Castle Rule developed from the English common law idea that a man’s home is his castle. It allows use of force, even deadly force, in defending one’s home. It could also be stated that one’s duty to retreat to avoid violence ends at the threshold to his home. For this reason, home invaders are presumed to have intent to kill and courts have found deadly force justified against a home invader, even when the invader’s intent was not physical harm. Indiana’s Castle Rule is codified at I.C. 35-41-3-2(b).
As a side note, though not specifically mentioned in Barnes, the rise in “no knock” warrants (NKWs) by police brings the officer safety component of the Barnes decision to the forefront. If every warrant were announced in broad daylight prior to police entry, and all homeowners met the police at the door, the impact of Barnes would be nil. But drug investigations in particular justify the use NKWs to prevent Johnny Methhead from flushing evidence (or having it blow up half a city block) before the police can control the situation. The Barnes decision comes to the forefront as a potential policy-shaping tool when one considers the likely response of the home’s resident. Underlying the decision is the Court’s fear of emboldening those who have no legitimate reason to think the entry is illegal. Opponents, of course, would argue that Johnny Methhead is unlikely to follow any nuances in the development 4th Amendment jurisprudence.
Aftermath and Clarification
Following significant media coverage and public backlash, the defendant (and then the state) filed a request for rehearing, asking the court to reconsider its decision. In an unusual step, a group of Indiana lawmakers submitted an amicus (“friend of the court”) brief as well. The Attorney General urged that the right to use reasonable force to protect one’s home should be preserved, but that, “reasonable resistance [should] not include battery or other violent acts against law enforcement.” Barnes, 953 N.E.2d 473, 474 (Ind. 2011).
About four months after its initial decision, the Court issued its second Barnes opinion. Perhaps the most important statements from the Court were these:
[Our original] holding about defenses available to criminal defendants charged with violence against police officers [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. What the statutory defenses should be, if any, is in its hands.
Barnes, 953 N.E.2d at 475. In essence, the Court was reminding its critics of the limited nature of its decision. To say the decision was statutory and not constitutional is to say: “This is what we believe the law IS,” not “This is is what the law MUST BE.” Emily Post could not have approved a more clearly engraved invitation to the General Assembly to weigh in–to pass a law to clarify how the Castle Rule intersects with police action. Would that federal appellate courts could show judicial restraint of this magnitude.
For those who keep score, neither Barnes opinion was unanimous. Justice Dickson and Justice Rucker both penned thoughtful dissents to the first opinion, and on the second, Dickson concurred only in the result, but Justice Rucker dissented again. He noted that even the second Barnes opinion left questions of statutory conflict unexplored. Both are worth reading.
Fast Forward to 2012
The General Assembly has responded to the Supreme Court’s invitation. As of the date of this post, a conference committee is reconciling Senate and House versions of a bill. The new law, which is expected to pass, would allow reasonable force against police officers if a person reasonably believed force was necessary to protect himself or someone else or to prevent or terminate the officer’s unlawful entry into the person’s “dwelling.” Predictably, and certainly influenced by the Barnes decision, it specifies that a person is not justified in using force against a law enforcement officer if: the person is committing (or escaping from) a crime; is the aggressor in a conflict with the officer; or if the person “reasonably believes the law enforcement officer is engaged in the lawful execution of the law enforcement officer’s official duties.”
This would clarify that the Castle Rule does apply to illegal police entries in Indiana, but with some important limitations. No word on the General Assembly’s take on a statutory definition of the adverse effects of Tasers.