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The Indiana Supreme Court Guts the Fourth Amendment
Posted By Arnold Ahlert On May 18, 2011 @ 12:38 am In Daily Mailer,FrontPage | 64 Comments
A ruling  by the state of Indiana’s Supreme Court last Thursday in Barnes vs. Indiana  has seemingly vacated the Constitution’s Fourth Amendment  provision against unreasonable search and seizure. The case involved a domestic dispute and the Court ruled 3-2 that police can force their way into a person’s home without a warrant if they deem such entry is necessary. Writing for the majority, Justice Steven David said that “a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”
The case began as a domestic squabble between Richard Barnes and his wife Mary, who were arguing outside their apartment in Vanderburgh County. It escalated when police arrived and the couple attempted to close the door on the officer who tried to follow them into their home. When the officer forced his way in, he was pushed against the wall by Mr. Barnes. Another officer then entered the house and used a stun gun to subdue Barnes, who was then arrested. He was subsequently charged with Class A misdemeanor battery on a police officer, Class A misdemeanor resisting law enforcement, Class B misdemeanor disorderly conduct, and Class A misdemeanor interference with the reporting of a crime.
At the original trial, Barnes wanted the jury to be apprised of the Fourth Amendment’s limitations on police conduct regarding unlawful entry into his home. His tender instructions to the jury: “When an arrest is attempted by means of a forceful and unlawful entry into a citizen‘s home, such entry represents the use of excessive force, and the arrest cannot be considered peaceable. Therefore, a citizen has the right to reasonably resist the unlawful entry.” The court refused to allow the reading, and Barnes was convicted of battery on a police officer, resisting law enforcement, and disorderly conduct.
When he appealed, challenging the original court’s refusal to allow the tendering of jury instructions, a Court of Appeals ruled that the refusal was not a “harmless error.” They also ruled that the evidence was insufficient to sustain a guilty verdict against Barnes for disorderly conduct. It ordered a new trial to be held.
The Indiana Supreme Court disagreed. While noting that the right to resist unlawful police action “existed for over three hundred years” and possibly as far back as the “Magna Carta in 1215,” the Court cited numerous precedents, one of which was the contention that, in the 1920s, “legal scholarship began criticizing the [Fourth Amendment] as valuing individual liberty over physical security of the officers,” noting that such resistance in earlier times “did not involve the serious dangers it presents today.” The Supreme Court contended that the Appeals Court was wrong when “it ultimately focused on the heightened expectation of privacy in one‘s home” instead of those dangers. Furthermore, the Court ruled that the defendant had other legal remedies to address the officer’s unlawfulness, including “bail.. prompt arraignment and determination of probable cause..the exclusionary rule…police department internal review and disciplinary procedure…and civil remedies.”
With regard to Barnes’s right to inform the original jury of Fourth Amendment constraints, the Court held that since “the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law” (as per this ruling), “the trial court‘s failure to give Barnes‘s proffered jury instruction on this right was not error.” The Court thus concluded, “Barnes‘s conviction and sentence are affirmed.”
Justices Brent Dickson and Robert Rucker dissented from the decision, with Dickson stating that “the wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad,” insisting that the Court could have taken “a more narrow approach, construing the right to resist unlawful police entry, which extends only to reasonable resistance, by deeming unreasonable a person’s resistance to police entry in the course of investigating reports of domestic violence.” Justice Rucker who called the decision a “breathtaking” erosion of the Fourth Amendment, contended there is is “simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home. ” Rucker then cut to the heart of the case: “At issue in this case is not whether Barnes had the right to resist unlawful police entry into his home–a proposition that the State does not even contest–but rather whether the entry was illegal in the first place, and if so, whether and to what extent Barnes could resist entry without committing a battery upon the officer.”
The fallout from the ruling has been produced starkly contrasting reactions. One one hand, Indiana State Police are investigating  several threatening phone calls and emails which Supreme Court spokeswoman Kathryn Dolan said were directed “primarily” at police officers. “We obviously want to protect the safety of our employees and alert police to individuals who might be dangerous, so we contacted Capitol Police,” she said. “Because they are investigating, I am not able to give more specific information.”
On the other hand, radio host Mike Church has reported  on his website that Newton County Sheriff Department head, Don Hartman Sr., contends the ruling means that random house to house searches are now possible, and that people would welcome them if it means capturing a criminal. The Sheriff did not return calls to verify this quote.
Will this case reach the Supreme Court of the United States? Oddly enough on Tuesday, SOTUS made a ruling  of it own on a similar case. In an 8-1 decision the Court held that if police officers, after knocking loudly on someone ‘s door, hear sounds they construe as evidence being destroyed, they can knock down that door and enter without a search warrant. The lone dissenter in the case was Justice Ruth Bader Ginsburg who contended that “[P]olice officers may not knock, listen and then break the door down without violating the 4th Amendment.” Justice Samuel Altio disagreed. “When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen may do,” he wrote. “Destruction of evidence issues probably occur most frequently in drug cases because drugs may be easily destroyed by flushing [them] down a toilet.”
One might be forgiven for thinking the Fourth Amendment itself is being subjected to the same treatment in Indiana.
Arnold Ahlert is a contributing columnist to the conservative website JewishWorldReview.com.
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URLs in this post:
 Image: http://frontpagemag.com/wp-content/uploads/2011/05/Picture-31.gif
 ruling: http://www.nwitimes.com/news/local/govt-and-politics/article_ec169697-a19e-525f-a532-81b3df229697.html
 Barnes vs. Indiana: http://bloximages.chicago2.vip.townnews.com/nwitimes.com/content/tncms/assets/editorial/c/82/cdb/c82cdbb8-7ea0-5c55-bb00-2aa247134bbb-revisions/4dcc5c97c31bf.pdf.pdf
 Fourth Amendment: http://www.usconstitution.net/const.html%23Am4
 investigating: http://www.nwitimes.com/news/local/govt-and-politics/article_8d416141-5026-51b7-898e-6cd827d878ee.html?mode=story
 reported: http://www.mikechurch.com/Today-s-Lead-Story/in-sheriff-if-we-need-to-conduct-random-house-to-house-searches-we-will.html
 ruling: http://www.chicagotribune.com/news/sc-dc-0517-court-search-20110516,0,5858981.story
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