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Justices asked to review ruling; Attorney general opposes decision on police searches
Fort Wayne Journal Gazette ^ | May 21, 2011 | Niki Kelly

Posted on 05/21/2011 5:40:57 AM PDT by John W

INDIANAPOLIS – 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.”


TOPICS: News/Current Events; US: Indiana
KEYWORDS: 4thamendment; barnesvsindiana; commonlaw; daniels; gregzoeller; policepower; searchandseizure; stevendavid; unlawfulentry; zoeller

1 posted on 05/21/2011 5:41:00 AM PDT by John W
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To: John W

Before we all overact on this....consider the fact in this one particular case that the wife who has some authority in telling the cop he has permission to enter....she can do so.

We may misinterpret the case and try to compare it to SWAT issues in America, but those are radically different in terms of legal aspects.


2 posted on 05/21/2011 5:48:05 AM PDT by pepsionice
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To: John W

In the state of Washington, it is a crime to resist an unlawful arrest.


3 posted on 05/21/2011 5:59:10 AM PDT by SeaHawkFan
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To: pepsionice
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.

I also think this would fall under the exigent circumstances exception to the fourth amendment. The court is making up law where it doesn't need to.

4 posted on 05/21/2011 5:59:42 AM PDT by USNBandit (sarcasm engaged at all times)
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To: John W

>> Critics of the decision say the court... 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

Duh. I’m not a judge or even a lawyer, and to me it’s obvious this is how they SHOULD have ruled.

Damn judicial tyrants! They’re the worst kind.


5 posted on 05/21/2011 6:00:04 AM PDT by Nervous Tick (Trust in God, but row away from the rocks!)
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To: pepsionice

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.”

I beg to differ. The police where I live are better educated than to barge into a home without permission, wife’s opinion notwithstanding. In fact, my wife would stand at my side and we would both be armed. Maybe this is OK in Indiana but NOT HERE. SCOTUS needs to rule on this issue.


6 posted on 05/21/2011 6:02:43 AM PDT by tgusa (Investment plan: blued steel, brass, lead, copper)
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To: USNBandit
The Chief Justice totally ignored the circumstance of the woman calling in the cops. Only someone steeped in the arcane of Islamic Law would do that ~ and Mullah Dau'd is so steeped.

That occurred over the many years when he was Chief Defense Counsel for detainees subject to the Military Commission’s proceedings at Guantanamo Bay.

It's pretty obvious that he's Gone Over and simply can't be trusted to write a case decision according to American traditions.

7 posted on 05/21/2011 6:09:48 AM PDT by muawiyah
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To: pepsionice

“Before we all overact on this...”

I think it was the Court who over-reacted. They could merely have found there were exigent circumstances that gave the cops the right to enter, but they didn’t do that.

In the decision the Court actually, plainly says that the cops can enter a persons home for “any” reason or “no” reason.

Do these dopes think Americans are going to stand for that? Because we’re not.


8 posted on 05/21/2011 6:10:28 AM PDT by jocon307
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Comment #9 Removed by Moderator

Comment #10 Removed by Moderator

Comment #11 Removed by Moderator

To: John W
"...if police wrongly enter a home, residents can sue them..."

Even after they commit suicide by cop?

12 posted on 05/21/2011 6:23:40 AM PDT by Paladin2
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To: John W

-—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.”-—

Wow. Evidently one has 4th Amendment rights only after they have been violated and then one must spends years and lots of money in courts to have them upheld. Has Indiana Governor Mitch Daniels said anything on this ruling? Especially since he thought the judicial appointment process in Indiana was far superior to electing jurists.


13 posted on 05/21/2011 6:23:40 AM PDT by rephope
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To: pepsionice

The case and the written ruling are apparently in different universes.


14 posted on 05/21/2011 6:25:33 AM PDT by Paladin2
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To: SeaHawkFan

Sad isn’t it...


15 posted on 05/21/2011 6:28:28 AM PDT by mad_as_he$$ ("Any sufficiently advanced technology is indistinguishable from magic." A. C. Clarke)
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To: muawiyah

The justice who wrote the opinion is NOT the chief.


16 posted on 05/21/2011 6:31:52 AM PDT by John W (Natural-born US citizen since 1955)
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To: rephope
The resort to judicial appointment commissions usually occurs in an environment where lots of folks think elections are too costly, and the attitude of most everybody else is that one judge is as bad as another anyway, so who cares.

Obviously there are risks in any system that leads to inferior judges ~ and it's pretty obvious the Indiana system leads to weirdos and freaks getting appointed.

Governors really don't have a choice in these systems ~ they get to pick 1 out of 3, or 2 from a list ~ that sort of thing.

Sarah Palin was faced with a choice between two radical abortion fanatics so she chose the least bad ~ not having any other choice.

We have to remove our Governors from this sort of partisanship and the way to do that is either select judges by lot from the broad masses of the people OR have them run for election and let the people chose.

It's always good to expand the franchise ~ that's the history of America.

17 posted on 05/21/2011 6:32:37 AM PDT by muawiyah
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To: John W

You’re right ~ Dau’d is not the Chief ~


18 posted on 05/21/2011 6:35:42 AM PDT by muawiyah
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To: pepsionice; John W
Before we all overact on this....consider the fact in this one particular case that the wife who has some authority in telling the cop he has permission to enter....she can do so.

We may misinterpret the case and try to compare it to SWAT issues in America, but those are radically different in terms of legal aspects.

Excuse me pepsionice but you are full of sh**. The ruling was that NO ONE has the right to resist an unlawful entry by police and they also said that the 4th amendment is obsolete because we can now sue the cops after the fact.

This case wasn't about if the wife gave permission or not, if that was true the ruling would have read something like, "we find the police had probable cause and also permission of one of the owners of the property to enter". That is not how the ruling went.

The justices totally ignored the fact that some house breakers wear cops suits and yell police when they break down the door in order to forestall any resistance. If cops enter unlawfully they are no better than any other person who is breaking and entering. This ruling is totally unconstitutional and is based on the idea of a "living constitution" which is open to interpretation which is a false assumption.

19 posted on 05/21/2011 6:40:45 AM PDT by calex59
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To: John W

Impeach those who voted for this first.


20 posted on 05/21/2011 6:42:44 AM PDT by Raycpa
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To: John W

Under this ruling what recourse is there if an innocent person loses their life? /S

The state might conclude they are not responsible damaged property in the course of their work and all citizens are in reality property of the state. One need look no further than the right of estate in which the state can take away all property or most of it upon ones passing. /S /S


21 posted on 05/21/2011 6:52:48 AM PDT by Vendome ("Don't take life so seriously... You'll never live through it anyway")
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To: calex59
The writer IGNORED the very existence of the woman and her rights.

The problem is this is a decision that might make some sense in Sharia law but not in America. The fact that the judge who wrote the decision had more than his fair share of contact with proponents of Sharia law is troublesome in the extreme.

22 posted on 05/21/2011 7:09:57 AM PDT by muawiyah
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To: John W

That one can defend one’s home from unlawful entry is not a right the State can grant: it comes from the Creator. The State’s attempt to intervene in thwarting this inalienable right will not be tolerated nor respected by the citizens, who will resist with violence in individual cases, and at the ballot box.

Power has corrupted the judges, politicians and police. Their audacity is increasingly turning this country into a tense us-versus-them situation, but we surround them.


23 posted on 05/21/2011 7:55:15 AM PDT by dagogo redux (A whiff of primitive spirits in the air, harbingers of an impending descent into the feral.)
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To: John W

This might haunt Mitch Daniels.


24 posted on 05/21/2011 8:04:12 AM PDT by Venturer
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To: pepsionice

There is no overreaction on this issue, the court did not limit it’s ruling to the specific case, it used the case to further erode 4th amendment rights. It should tell you something when even the government’s own attorney says the court went too far.


25 posted on 05/21/2011 8:15:12 AM PDT by cbvanb
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To: John W

“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.””

I’d say that given the risk of harm to both the police and defendant, the police need to revisit their policy on home entries that are likely to get a violent response from an innocent citizen that isn’t going to take this kind of crap.

I could care less about this ruling as I have no reason to expect police to enter my home and must assume it’s a home invasion robbery. I will deal with the matter appropriately. If the police do need to enter my home, they will have a warrant or they are not coming in.


26 posted on 05/21/2011 8:20:41 AM PDT by BCR #226 (02/07 SOT www.extremefirepower.com...The BS stops when the hammer drops.)
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To: BCR #226
So, one day some guys come through the back door and steal your stuff. You call the cops.

They will ask you "show us the crime scene" and you will demand a warrant.

Sure you will.

Your insurance company is not going to pay your claim if you don't let the cops take a look.

27 posted on 05/21/2011 9:31:09 AM PDT by muawiyah
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To: pepsionice

The central issue here is that the ruling addressed an issue not before the court...and got it wrong. The police had the right to enter in this particular case, but not for the reasons stated in the decision. The court did not need to consider the Fourth Amendment issue, since the wife had given permission.


28 posted on 05/21/2011 10:15:46 AM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: pepsionice
"We may misinterpret the case..."

The average citizen may misinterpret the case, and nobody gets hurt. Not so much when the average LEO misinterprets the ruling.

29 posted on 05/21/2011 10:19:46 AM PDT by Joe 6-pack (Que me amat, amet et canem meum)
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To: rephope; All
Especially since he thought the judicial appointment process in Indiana was far superior to electing jurists.

That vetoed bill would've changed it for just one county and also created a new circuit court. He also saw it as a Democrat power grab.

We have elected judges in CA. It's no great thing. Voters know nothing about them. They collude to avoid saying anything useful by hiding behind an "ethics" code. The press show no interest in vetting them thus the trial lawyer favorites typically prevail thanks to union run GOTV operations.

In Indiana, newly appointed picks do come up for a retention vote after their first two years. Daniels pick should be up in Nov. 2012.

Finally, the minority were 1R, 1D appointees, the majority 2R, 1D appointees.

30 posted on 05/21/2011 10:20:00 AM PDT by newzjunkey
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To: muawiyah

Won’t say it can’t happen but the likelyhood of someone choosing my house to rob is very slim. There are much, much easier targets to go after. Not to mention safer...


31 posted on 05/21/2011 11:20:24 AM PDT by BCR #226 (02/07 SOT www.extremefirepower.com...The BS stops when the hammer drops.)
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To: BCR #226

Like they say CROOKS ARE STUPID.


32 posted on 05/21/2011 2:36:41 PM PDT by muawiyah
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To: muawiyah

Yes they are which is why I have several layers of security including a pack of land sharks to warn off the stupids.


33 posted on 05/21/2011 3:16:20 PM PDT by BCR #226 (02/07 SOT www.extremefirepower.com...The BS stops when the hammer drops.)
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