Saturday, November 19, 2011

Half of the Second and the Third Pages of the Indiana Supreme Court's Decision Following the Rehearing in Barnes v. State


This is from the Indiana Supreme Court's second Barnes decision, upon rehearing.  It was jarring to me, in particular, because I respect this Court -- particularly what Chief Justice Shepard has done in drawing attention back to Indiana's state Constitution, and in the work that the Court has done to encourage civic education.  Nevertheless....


Pay attention to the parts highlighted in red.  Do you see what they did, there?:

"The legislature has declared it to be a Class A misdemeanor when one commits battery on a law enforcement officer 'while the officer is engaged in the execution of the officer’s official duty.'  Ind. Code § 35-42-2-1(a)(1)(B) (2008).1

"Barnes’s demand for this instruction has rested solely on the common law rule that 'a man’s home is his castle,' which gives him the right to reasonably resist unlawful entry.  The amicus legislators additionally cite a statute not pleaded by Barnes which creates a defense to crimes of violence, authorizing a person to use 'reasonable force, including deadly force, against another person . . . if the person reasonably believes that the force is necessary to prevent or terminate' the unlawful entry of his dwelling or occupied motor vehicle. I.C. § 35-41-3-2(b).  As will appear below, the Attorney General’s analysis of this statute speaks to the same point raised by the amicus.

"The Attorney General’s response to Barnes’s petition for rehearing urges that this right should remain intact but likewise urges that 'reasonable resistance does not include battery or other violent acts against law enforcement.'

"We deem the Attorney General to have restated the central thesis of our resolution of this case.  As he says,

Tense and even dangerous police-citizen encounters fit no limited pattern; reactions and decisions are made in the split second, and each incident is unique.  The hindsight, after-the-fact evaluation by the judiciary is inherently a case-by-case process, but our courts have shown themselves equal to the task as they strike the correct balance between safety and privacy.

"The Attorney General is correct that making such decisions is inherently a matter based on fact, but whether a criminal defendant may be excused from a crime created by statute is a matter of general law.  Consistent with his earlier point, we hold that the Castle Doctrine is not a defense to the crime of battery or other violent acts on a police officer.


"Our holding does no more than bring Indiana common law in stride with jurisdictions that value promoting safety in situations where police and homeowners interact.  Importantly, we observe the actions in this case were 'appropriate to a rapidly unfolding situation in the immediate aftermath of a reported' domestic violence situation.  Commonwealth v. Gomes, 795 N.E.2d 1217, 1222 (Mass. App. Ct. 2003) (refusing to grant a jury instruction on the right to forcibly resist an unlawful police entry).

"We also emphasize that this holding does not alter, indeed says nothing, about the statutory and constitutional boundaries of legal entry into the home or any other place.  Our earlier opinion was not intended to, and did not, change that existing law about the right of the people to be secure in their persons, houses, and papers against unreasonable searches and seizures.  U.S. Const. amend. IV; Ind. Const. art. 1, § 11.

"This also reflects the basis for our holding about defenses available to criminal defendants charged with violence against police officers: the ruling is statutory and not constitutional.  The General Assembly can and does create statutory defenses to the offenses it criminalizes, and the crime of battery against a police officer stands on no different ground.  What the statutory defenses should be, if any, is in its hands."

The answer to the question is, "They pretended to legislate."

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