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No Right to Assault Police Officer Entering Home Even if Entrance is Unlawful: Indiana Supreme Court
Volokh Conspiracy ^ | 5/13/11 | Orin Kerr

Posted on 05/13/2011 3:52:05 PM PDT by BCrago66

The decision is Barnes v. State, and the Indiana Supreme Court divided 3–2.

In this case, the officer had come to the home in response to a domestic violence call. He found the defendant, Barnes, outside. The officer and the defendant exchanged heated words, and the defendant started yelling at the officer. The officer threatened to arrest the defendant if he didn’t calm down, and the defendant threatened to have the officer arrested if he arrested him. At this point the defendant’s wife came outside, threw a duffel bag in the defendant’s direction, and told him to take the rest of his stuff. She then went back inside the home. The defendant then reentered the home following his wife, but once inside he blocked the officer (and another officer) from entering. The officers asked if they could enter the home, and the defendant’s wife pleaded with the defendant to let them enter. The defendant refused. The police then entered anyway, and the defendant “shoved [an officer] against the wall.” The officers then tazed the defendant and arrested him.

(Excerpt) Read more at volokh.com ...


TOPICS:
KEYWORDS: 4thamendment; fourthamendment; indiana; policestate; tyranny; unlawfulentry
I don't know the right answer to this legal question, in Indiana or any other State. But I find this case interesting for this reason: The Defendant lost, but his case made it to the Indiana Supreme Court, and he lost it by the divided vote of 3-2. So it was a close call as to whether the Defendant had a common-law right to shove a police officer when that officer made an unlawful entry into his home.

I can think of no other country in the world other - including the UK - in which the common-law tradition of liberty still retains enough strength to make a case like this one a close question.

1 posted on 05/13/2011 3:52:08 PM PDT by BCrago66
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To: BCrago66

The wife gave her implied permission to enter, the man became violent. They should have beat the daylights out of him.


2 posted on 05/13/2011 3:55:17 PM PDT by stockpirate (Republicans that vote for socialism, support socialists are socialists.)
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To: stockpirate

I hope you’re not a cop, Stockpirate.


3 posted on 05/13/2011 3:57:37 PM PDT by BCrago66
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To: BCrago66

He sounds like a cop


4 posted on 05/13/2011 3:59:55 PM PDT by Oztrich Boy (Monarchy is the one system of government where power is exercised for the good of all - Aristotle)
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To: BCrago66
I'm as willing as anybody to bash cops, but you keep shopping this incomplete bit of tripe and expect people to take it at the face value you put on it.

The wife gave the cops permission to come in. End of story.

5 posted on 05/13/2011 4:00:28 PM PDT by E. Pluribus Unum (Islamophobia: The fear of offending Muslims because they are prone to violence.)
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To: BCrago66
The woman called the cops in between trips to the truck with his "stuff". He was moving out.

The cops arrived.

There was no unlawful entry.

Her rights to consult with the cops were violated by her husband (presumably separated).

Unlawful entry plays no part in any of this yet the state supreme court wrote their entire decision as if there was an unlawful entry.

It's a nutso case ~ none of these judges could get past a rolling drunk test.

I'm not at all worried that a Virginia cop is going to use this as an excuse to just bust into my house. I'm not concerned about that if I visit relatives in Indiana.

Do you have any idea what the percentage of households possessing both guns and pickup trucks is in Indiana?

6 posted on 05/13/2011 4:01:30 PM PDT by muawiyah
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To: BCrago66

This was posted here earlier.
Upon following a few links the facts and circumstances seem to be that the couple was having an argument outside the house, both parties went back into the house and then there were sounds indicating he was threatening and/or injuring her. Not exactly a no knock raid by a SWAT team, more akin to if a cop outside had good reason to believe someone was beating or about to beat their wife (or husband)..

Not that I think the police should *ever* be allowed to enter a home without a warrant, and at that *always* be required to identify themselves, present the warrant and allow examination of it (and yes, if that means that on occasion the bad guys can flush some drugs down the toilet that’s less of an injury to society than no knock raids by dog shooting jack booted thugs) except for a hostage situation.


7 posted on 05/13/2011 4:01:42 PM PDT by RedStateRocker (Nuke Mecca, Deport all illegals, abolish the IRS, DEA and ATF.)
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To: BCrago66

Can I accidentally spill 5 gallons of water and while fleeing drop a lamp in the water, accidentally?


8 posted on 05/13/2011 4:02:41 PM PDT by Vendome ("Don't take life so seriously... You'll never live through it anyway")
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To: stockpirate

Are you saying that implicitly?


9 posted on 05/13/2011 4:03:25 PM PDT by Vendome ("Don't take life so seriously... You'll never live through it anyway")
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To: BCrago66; stockpirate
Stockpirate is right but one of the reasons cops go in teams is so they can do just that if they get attacked.

I gather from the decision that there were no serious injuries in any of this ~ if it'd been out in the county and Sheriff was answering the call, I really don't know what would have happened. They work hard to keep those creases in those starched brown shirts.

10 posted on 05/13/2011 4:04:33 PM PDT by muawiyah
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To: BCrago66
Slippery slope?
11 posted on 05/13/2011 4:06:29 PM PDT by SouthTexas (You cannot bargain with the devil, shut the government down.)
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To: Vendome

Under the circumstances as discribed the man had no legal right to refuse the officers entrance.

First off he was acting badly and followed his wife in to the house. If the officers felt she was in danger, which his later behaviour indicates, they could enter in order to protect her. She also implied consent when she told her husband to let them in.

All the officers need to say is they felt she was in danger.

Now if they come to your house and just to come in without a warrent that is of course different.


12 posted on 05/13/2011 4:08:50 PM PDT by stockpirate (Republicans that vote for socialism, support socialists are socialists.)
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To: BCrago66

An interesting note: Though he did not permit the police to enter his house, it was noted that his wife “begged him to let in the police.”

Now, as far as *legal* entry goes, this would be a slam dunk, because the police only need *one* adult who lives there to give them authority to enter.

Because of this, the trial court should have found that despite what the husband said, the police were authorized to enter, so from that point, his attacking them was assault and resisting arrest.

But while the defendant would ignore this, the prosecution and the judge should have noted it, as it would have made his appeal fruitless from the get go, and the State supreme court would have turned it down.

This suggests that the State supreme court was looking for an excuse in this case, and might have possibly colluded with the trial court judge.


13 posted on 05/13/2011 4:12:20 PM PDT by yefragetuwrabrumuy
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To: RedStateRocker

I don’t want to get too pedantic here, but the legal question here is not whether the cop’s entry was unlawful. The question the Indiana Supreme Court was addressing was: Assuming the entry was unlawful, did the defendant have the right to shove the cop (or was the shoving a crime.)

I’m not pretending to know the answer to this question, before studying the case further.

(Someone complained about “incomplete” information: I don’t get that complaint. On FR, we post excerpts so as to to violate copyright law. If you go the post, it links to the entire Indiana Supreme Court decision.)

As for the cop’s tazing and arrest: Maybe that was justified under the circumstances. But we want cops to possess self-control, and use force to the extent necessary to defend themselves or to effectuate an arrest. In a free country, it’s not really that funny to say cops should “beat the daylights” out of someone, like am out-of-control kid thug.


14 posted on 05/13/2011 4:12:48 PM PDT by BCrago66
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To: yefragetuwrabrumuy

It also suggests they all drink too much.


15 posted on 05/13/2011 4:14:00 PM PDT by muawiyah
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To: E. Pluribus Unum
"The wife gave the cops permission to come in. End of story. "

agreed. this looks like it should have been an open and shut case.

16 posted on 05/13/2011 4:19:31 PM PDT by Steve Van Doorn (*in my best Eric cartman voice* 'I love you guys')
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To: BCrago66

Here’s the decision:
http://www.in.gov/judiciary/opinions/pdf/05121101shd.pdf

Remember, reading is FUN-damental.


17 posted on 05/13/2011 4:21:25 PM PDT by BCrago66
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To: BCrago66
There is a law here that I have the right to defend myself against intruders. If I happened to kill one inside the door few questions are asked. What if a robber comes in dressed like a cop? 12 Ga can't tell the difference. Be polite and knock. That goes for the bear that tried to get in.
18 posted on 05/13/2011 4:23:29 PM PDT by mountainlion (America land of the free because of the Brave.)
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To: stockpirate

If the entry is unlawful, it doesn’t matter if they have a uniform or not. Sounds like the entry was unlawful.


19 posted on 05/13/2011 4:39:56 PM PDT by Blood of Tyrants (Islam is the religion of Satan and Mohammed was his minion.)
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To: All; BCrago66
Same topic, earlier thread
20 posted on 05/13/2011 4:47:53 PM PDT by newzjunkey (Stay focused: Debt, Deficits, Immigration.)
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To: BCrago66

“The question the Indiana Supreme Court was addressing was: Assuming the entry was unlawful, did the defendant have the right to shove the cop (or was the shoving a crime.)”

These days I think one could make the case that a cop unlawfully entering your house is a self-defense situation.


21 posted on 05/13/2011 4:55:22 PM PDT by PLMerite (Shut the Beyotch Down!)
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To: mountainlion
What if a robber comes in dressed like a cop?

That's not a "what-if". I just read about a couple of dirt bags that were arrested for doing just that...dressing up like cops and breaking in. Anybody can buy a uniform/hat/badge/jacket and carry on.

That's why I say...whether you're a cop or a criminal (and it's getting hard to tell), if you break through my door, I will do my best to kill you, and you won't be bulletproof. I have nothing to hide, but I will not yield to the Blue Gestapo.

22 posted on 05/13/2011 5:01:01 PM PDT by cayuga (The next Crusade will be a war of annihilation.)
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To: BCrago66

Entire article is written from an anti-police standpoint.

Wife had legal right to be in house. She clearly indicated her request for police to enter.

They then had a right to enter.

End of case.


23 posted on 05/13/2011 5:04:57 PM PDT by MindBender26 (While the MSM slept.... we have become relevant media in America.)
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To: BCrago66

Entire article is written from an anti-police standpoint.

Wife had legal right to be in house. She clearly indicated her request for police to enter.

They then had a right to enter.

End of case.


24 posted on 05/13/2011 5:04:57 PM PDT by MindBender26 (While the MSM slept.... we have become relevant media in America.)
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To: Blood of Tyrants
The cops were there at the request of the tenant ~ the woman. You only need one.

The guy was on his way out ~ they were breaking up. If I follow this right when she gave him that last bag of his "stuff" that was it ~ gone ~ fine'.

It was LAWFUL. What was unlawful was when the guy pushed the cop.

He appealed his conviction and then a bunch of whacked out inebriated or intoxicated judges got hold of it and did funny stuff with it. Bet there's some skid marks on the backside of the last page!

25 posted on 05/13/2011 5:22:57 PM PDT by muawiyah
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To: PLMerite

The justices addressed everything but the facts ~ it was a lawful entry. The guy who attacked the cop didn’t even live there.


26 posted on 05/13/2011 5:25:26 PM PDT by muawiyah
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To: MindBender26

What part of UNLAWFUL ENTRY, the finding of the court, do you NOT comprehend?


27 posted on 05/13/2011 5:25:41 PM PDT by newzjunkey (Stay focused: Debt, Deficits, Immigration.)
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To: muawiyah

The justices called it an “unlawful entry.”


28 posted on 05/13/2011 5:26:28 PM PDT by newzjunkey (Stay focused: Debt, Deficits, Immigration.)
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To: newzjunkey
The justices didn't rule that an unlawful entry was made. What they were doing was saying "If it was an unlawful entry, so what". The plaintiff said it was an unlawful entry and he said (through his lawyer) that he had a right to smack the cop around.

This case didn't have to go beyond the lady's call to 911. She lived there ~ not the perp.

There's probably some circumstance where you come upon a cop just minding his business and it is your job to leap out and give him a beating. I don't know what it would be, but I can imagine the Indiana Supreme Court thinking about it a lot and telling us what it might be.

This time, though, deep in thought (or their cups) they decided that when it's an unlawful entry the guy didn't have the right to push the cop.

There are laws that make it a crime to assault cops anywhere when you know they are cops. This guy knew he was dealing with the cops.

BTW, I really can't defend the logic the court followed. I think they were sloppy to the point of negligence ~ and that Mitch Daniel's star lawyer was a mistake to appoint to this job. The guy's a zoner.

29 posted on 05/13/2011 5:36:18 PM PDT by muawiyah
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To: E. Pluribus Unum

Like you I noticed the wife asked the officer to enter. I forget the rule when one person consents to entry and/or search and seizure and another with equal right to the premises does not does not.


30 posted on 05/13/2011 5:41:52 PM PDT by AEMILIUS PAULUS (It is a shame that when these people give a riot)
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To: newzjunkey
The very first instance of "unlawful entry" was prefaced at the beginning of the sentence with: "Barnes contests ...." ~ that's not the Justices ruling that it was an "unlawful entry" ~ it's the plaintiff, Barnes, calling it that.

He can call it to the cows come home if he wants, but it wasn't an unlawful entry.

Now, to the Court's discussion, it is bizarre. They didn't need to say anything at all since it was strictly a hypothetical situation concocted by the plaintiff ~ and not tried in a court.

31 posted on 05/13/2011 6:00:59 PM PDT by muawiyah
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To: muawiyah

Okay, but the ruling that you cannot resist a cop trying to unlawfully enter your house is plain wrong.


32 posted on 05/13/2011 6:02:41 PM PDT by Blood of Tyrants (Islam is the religion of Satan and Mohammed was his minion.)
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To: Blood of Tyrants
Remember, supposedly sober law clerks write these things.

This is a very in-artful way of saying that if you know the guy is a cop and he's not doing anything to you, whether or not he arrived at the place he's standing lawfully or unlawfully the laws say you simply can't beat on him.

However, it is so in-artful it is INARTICULATE in the extreme, and is clearly not something that was proofread by anyone. I think even the dissenters did little more than review the "notes" made by the majority.

Alcohol will do that to you ~ particularly if you drink on the job or at lunch. So will some common narcotics that are subject to abuse.

33 posted on 05/13/2011 6:08:51 PM PDT by muawiyah
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To: Blood of Tyrants
BTW, by the time he got around to pushing around the cop he'd already informed him that he had moved out! He didn't live there anymore. It wasn't his house.

I know that's a subtle distinction between having a residence and not having a residence, but there you have it.

It's an action that happens all at once ~ not like what happened to the nasty mouthed evil dwarf who is now Mayor of Chicago. They had him "easing out" of his residence yet they couldn't pin down a time where it happened or even where he'd become a new resident.

This case is different. You tell the cops "I'm outta' there" they are, presumably, allowed to act on that information. It's called "a reasonable expectation".

34 posted on 05/13/2011 6:13:04 PM PDT by muawiyah
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To: FReepers
We Can Do This

Become A Monthly FR Donor

35 posted on 05/13/2011 6:41:25 PM PDT by DJ MacWoW (America! The wolves are at your door! How will you answer the knock?)
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To: BCrago66
I don’t want to get too pedantic here, but the legal question here is not whether the cop’s entry was unlawful.

Based on my reading it wasn't - he had permission to enter.

The point that gives me pause and goes against everything I believe is this statement in the Opinion by Justice David - it's a non-starter for me:

If there is no right to reasonably resist an unlawful entry, just what else is left - unreasonable resistance? And no, I do not buy the socialist driven mantra that the court is the place to get resolution. As we have seen time and time again, we have lawyers making law, interpreting law, and judging law - and we are stuck with "no standing"!

36 posted on 05/13/2011 6:45:02 PM PDT by brityank (The more I learn about the Constitution, the more I realise this Government is UNconstitutional !!)
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To: Oztrich Boy; BCrago66; stockpirate
He sounds like a cop

Maybe not. Would he go to the back yard and shoot the family's elderly lame, blind minature poodle?

37 posted on 05/13/2011 6:50:09 PM PDT by Grizzled Bear ("Does not play well with others.")
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To: BCrago66

American NAZIs on the march...

Our very own Gestapo!


38 posted on 05/13/2011 7:02:40 PM PDT by meyer (We will not sit down and shut up.)
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To: stockpirate
The wife gave her implied permission to enter, the man became violent. They should have beat the daylights out of him...

Judge Dredd, huh?

39 posted on 05/13/2011 8:05:08 PM PDT by gogeo (Palin/Bachmann 2012)
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To: Blood of Tyrants

I never said anything about a uniform. The title of the article is bad, and your belief is just as bad law.

And at my age I could explain why but figure it out for yourself.

The court ruled correctly in this case.


40 posted on 05/13/2011 8:07:09 PM PDT by stockpirate (Republicans that vote for socialism, support socialists are socialists.)
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To: BCrago66

I’ve been called a lot of things but never a cop. No I could never be a cop and here is why. my technique to stop someone goes like this:

BANG, BANG

HALT

Man I never get that right


41 posted on 05/13/2011 8:11:26 PM PDT by stockpirate (Republicans that vote for socialism, support socialists are socialists.)
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To: Grizzled Bear

yeah not a cop, and I wouldn’t shoot your dog, but I would have kicked that husbands ass.


42 posted on 05/13/2011 8:14:46 PM PDT by stockpirate (Republicans that vote for socialism, support socialists are socialists.)
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To: gogeo

No not Judge Dredd, but old school from my youth.


43 posted on 05/13/2011 8:24:33 PM PDT by stockpirate (Republicans that vote for socialism, support socialists are socialists.)
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To: newzjunkey
No, the court did NOT find it was an illegal entry.

They ruled on on issue shown here. They ruled that EVEN IF the entry had been illegal, the perp does not have the right to decide that, and commit a battery on the LEO in the hope the entry would later be found to be illegal. It cites the other remedies available.

It goes on to describe the many ways LEOs can enter absent a warrant.

That is why it is so important to read the entire piece very carefully, especially when it is from a one-sided source.

44 posted on 05/13/2011 9:04:45 PM PDT by MindBender26 (While the MSM slept.... we have become relevant media in America.)
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To: AEMILIUS PAULUS

So you’re saying tie goes to the wifebeater?


45 posted on 05/13/2011 9:16:28 PM PDT by E. Pluribus Unum (Islamophobia: The fear of offending Muslims because they are prone to violence.)
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To: stockpirate

Shhh!

Did you hear that....?


46 posted on 05/13/2011 9:41:58 PM PDT by Vendome ("Don't take life so seriously... You'll never live through it anyway")
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To: MindBender26
They ruled that EVEN IF the entry had been illegal, the perp does not have the right to decide that, and commit a battery on the LEO in the hope the entry would later be found to be illegal.

So now if police illegally enter the home of any law abiding person in Indiana, it's against the law for him to resist.

Do you support this ruling?

47 posted on 05/14/2011 12:18:24 AM PDT by Ken H
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To: Ken H

Support ruling? Of course I do

Stop and think this through. Cops arrive and enter due to one of many reasons they can legally enter without warrant

Homeowner thinks entry so he starts fight with cops. Even worse, he produces legally owned firearm and starts shooting. Cops shoot back. In end 2-3 people dead.

As court held, there is now sufficient redress for an illegal entry. 3am, after a dozen beers is not the time to decide whether or not the entry is legal.


48 posted on 05/14/2011 8:03:00 AM PDT by MindBender26 (While the MSM slept.... we have become relevant media in America.)
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To: Ken H

Make that “homeowner thinks (incorrectly as in this case,or even correctly) that entry is illegal”


49 posted on 05/14/2011 8:07:25 AM PDT by MindBender26 (While the MSM slept.... we have become relevant media in America.)
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To: E. Pluribus Unum

I don’t think I said “the tie goes to the wife beater.” I was interested in the wife’s implicit request that the police enter. Go to the Volokh Conspiracy website. He is a somewhat conservative law professor at UCLA-of all places! The website has extensive comment on the decision.


50 posted on 05/14/2011 9:37:39 AM PDT by AEMILIUS PAULUS (It is a shame that when these people give a riot)
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