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Justices asked to review ruling

Attorney general opposes decision on police searches

– Indiana Attorney General Greg Zoeller on Friday joined the chorus of Hoosiers protesting a controversial Fourth Amendment ruling recently decided by the Indiana Supreme Court.

Zoeller released a statement saying he will support a rehearing of the case due to concerns that the court ruled too broadly when it found citizens have no right under common law to reasonably resist police who unlawfully enter their homes.

The Barnes v. State ruling came last week and was the first major opinion penned by Justice Steven David – Gov. Mitch Daniels’ appointment.

“We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” David wrote. “Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action.”

The Fourth Amendment guards against unreasonable search and seizure.

The court ruled that the centuries-old standard no longer applies because if police wrongly enter a home, residents can sue them and, unlike hundreds of years ago, get quick bail, have a quick court date and not be tortured in jail.

Since the decision was released, attorneys, newspaper editorials and Hoosiers of all sorts have come out against the ruling. A rally protesting the decision is scheduled for Wednesday at the Statehouse.

Court officials have also acknowledged boosting security after receiving numerous harassing phone calls and emails.

The case involved a Vanderburgh County man who was arguing with his wife while moving out of their apartment. The man, Richard Barnes, yelled at police, who followed him back into his apartment. Barnes told police they could not enter, and he struggled with an officer who ignored him. Barnes was later charged and convicted of battery.

Critics of the decision say the court – in a 3-2 ruling – tossed out hundreds of years of common law when it could have focused more narrowly, noting police in the case had probable cause to investigate a domestic abuse allegation and the wife inferred her permission for them to enter the home.

Zoeller said he will argue for keeping Barnes’ convictions but scaling back the legal impact of the case upon future cases, consistent with judicial restraint.

“In our brief and argument to the Indiana Supreme Court last fall, my office did not advocate for the type of ruling the court issued last week. I believe a reconsideration is appropriate. A rehearing and a new ruling would afford the Supreme Court the opportunity to clarify any misperceptions regarding people’s Fourth Amendment right to be secure in their homes against unreasonable searches and seizures – even against unlawful entry by police,” said Zoeller, a Republican.

“While there is no right to commit battery against police, I believe the individual has the right to shut the door, stand his ground and communicate with police without engaging in an altercation. In balancing the perils of domestic violence with respect for law enforcement, I will continue to advise our police clients to respect people’s Fourth Amendment rights.”

Barnes’ defense attorney also is seeking a rehearing, which must be filed by June 13.

Meanwhile, a Fourth Amendment expert at the IU Maurer School of Law in Bloomington said the decision was sound.

“The Supreme Court’s decision means that we can’t allow people to take the law into their own hands,” professor Craig Bradley said. “The law should not allow people to assault police whenever they claim that they ‘thought’ the entry was illegal.”

He went on to say that “if the defendant thought the police officer’s entry into his home was illegal, he has plenty of opportunities to raise that issue through the court system. The risk of harm to both the police and the defendant is too great to allow people to take matters into their own hands.”

nkelly@jg.net

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