Monday, May 16, 2011

State v. Barnes: Government Takes Away Another Freedom

In State v. Barnes, the Indiana Supreme Court overturned 800 years of settled law to find, "We hold that there is no right to reasonably resist unlawful entry by police officers."

That is right. In Indiana, police officers now may enter your home illegally, and you can't resist.

One's home is no longer one's castle, at least not in Indiana.

Ohio still recognizes that a person has a right to resist an unlawful entry, and suggests that the right to refuse an unlawful entry is guaranteed by the Fourth Amendment to the United States Constitution (which is supposed to apply even in Indiana): State v. Holmes (9th Dist App.), 2005-Ohio-1632:
{¶16} The Fourth Amendment to the United States Constitution confers the right to refuse consent to enter a residence, and the assertion of that right cannot be a crime. State v. Robinson (1995), 103 Ohio App.3d 490, 496 (characterizing the right to resist an unlawful entry as a privilege sufficient to defeat obstruction charge). See, also, Ohio Const. Section 14, Article I. In the present case, the police officers admittedly forced the entry into the home, without justification of either a warrant or any exigent circumstance. Facially, this is an unlawful entry giving rise to a privilege to resist such an entry.

{¶17} Similarly, because the Ohio statute does not prohibit resisting an unlawful arrest under such circumstances, it follows that it will not per se prohibit resisting an unlawful entry. Elyria v. Tress (1991), 73 Ohio App.3d 5, 9 (reversing conviction for resisting arrest when police forced entry through defendant's door). See, also, State v. Cummings, 9th Dist. No. 20609, at *13-14, 2002-Ohio-213 (affirming the suppression of evidence obtained after a similar forced entry). Therefore, if we are to follow our prior holdings, we must conclude that the State failed to prove beyond a reasonable doubt a necessary element of the crime of which Mr. Holmes was convicted, i.e., lawfulness of the officer's entry and absence of privilege. In re Winship (1970), 397 U.S. 358, 364, 25 L.Ed.2d 368.
There is an interesting discussion of State v. Barnes at The Volokh Conspiracy in the comments section. On commenter quotes an Indiana statute that specifically authorizes resistance to an unlawful entry. I guess the court simply magically created a exception for unlawful entry by police.

Any police entry by force causes me serious concern, both for the occupant and for the police. If the police do the right thing and announce themselves as police before entering sometimes violently, how is the homeowner to know it is really the police? How do they know it is not home invaders claiming to be police?

I know of arrests witnessed by people whose observations I trust. Aside from the automobile stop alongside the road, there is usually no good reason for a violent arrest tactic when the offender is not resisting. Unnecessary violence creates resistance, doesn't it? In more cases than not, the alleged offender will show up voluntarily at the police station just to avoid a violent arrest. I understand concerns for police safety, but there must be a better way than police exercising violent to arrest a passive alleged offender. It gives police a bad reputation, I think.

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