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May 18, 2011

Tea partiers plan to fight ruling on cop access

Court finds no right to resist ‘unlawful entry’

Arthur Foulkes The Tribune-Star

TERRE HAUTE — Supporters of the Wabash Valley Tea Party movement are questioning a recent Indiana Supreme Court decision that states Hoosiers have no right to reasonably resist unlawful entry of their homes by police officers.

The Wabash Valley Tea Party met Tuesday night at the VFW Post 972 in Terre Haute. Most of the meeting featured comments on the U.S. Constitution by former U.S. Rep. John Hostettler, who represented Indiana’s 8th District in Congress from 1995 TO 2007.

However, the meeting also focused briefly on the recent Indiana Supreme Court decision, which was handed down in a 3-2 vote last week. A pre-meeting email to Tea Party supporters from Fred and Mary Lamb, Tea Party organizers, cited the decision and urged people to attend the event.

“It’s a topic in which our members are extremely interested,” said Fred Lamb on Tuesday evening. He said he hopes to have a position paper on the decision after having time to read it carefully.

The eight-page decision states that “a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence.” These days, there are legal means available to someone whose home was unlawfully entered by the police that can take the place of physically resisting a law enforcement officer’s unlawful entry, the judges ruled.The Indiana Supreme Court decision came in response to a 2007 case involving a domestic disturbance. In that case, a man who had been involved in a shouting match with police, Richard Barnes, attempted to prevent a police officer from entering his home by blocking the door. When police attempted to enter anyway, Barnes pushed one of the officers against a wall.

Rather than simply rule that Barnes was out of bounds by pushing the officer during an active investigation of possible domestic violence, the Indiana high court used much more sweeping language in its decision and stated that “there is no right to reasonably resist unlawful entry by police officers.” The majority, in fact, did not even offer an opinion on the legality of the police entry into Barnes’s apartment.

“I’m a little surprised the decision went as far as it did,” said Novella Nedeff, associate clinical professor of law at the Indiana University School of Law in Indianapolis. “The Indiana Supreme Court could have decided this case on much narrower grounds.”

That was also the feeling of Justice Brent Dickson, one of two Indiana Supreme Court justices to oppose the majority’s decision.

“In my view, the wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad,” Dickson wrote in his dissenting opinion. The majority should have limited its ruling to unreasonable resistance, such as blocking an officer attempting to investigate a possible case of domestic violence, he wrote. The majority should have left alone the right to “reasonable” resistance of unlawful entry, he stated.

Nevertheless, there are understandable policy reasons for the majority’s ruling, Nedeff said. The majority’s goal was to prevent people from arguing with police in the heat of the moment in a potentially volatile situation. The justices clearly believe it would be better – and safer for everyone – if an aggrieved person later protest the unlawful entry through the legal system, she said.

Indeed, the majority stated as much, stating, “we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment.”

Despite understanding the goal of the majority’s ruling, Nedeff also understands from where resistance to the decision is coming. The ruling states that someone cannot act “reasonably” while police are acting unlawfully. “That’s not going to sit well with people,” she said.

When asked whether the case might find its way on appeal to the U.S. Supreme Court, Nedeff said that is not guaranteed. The majority did not rely on the Fourth Amendment or any other Constitutional provision to make its ruling. Rather, the Indiana court relied on common law for its ruling. That may reduce the chances that the U.S. high court would agree to hear the case.

Still, the Indiana Supreme Court’s decision may not be permanently written in stone. If police act in extreme ways in the future that seem to abuse the court’s ruling, the court can always hand down another decision that effectively amends Thursday’s ruling, Nedeff said.

“Time will tell,” she said.

Arthur Foulkes can be reached at (812) 231-4232 or arthur.foulkes@tribstar.com.

 

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