Today at 1:00 p.m., the General Assembly’s “Barnes v. State” subcommittee will hold a hearing at 1:00 p.m. in room 431 of the State House. The purpose of the committee is to consider a legislative response to the Indiana Supreme Court’s decision in Barnes v. State (pdf) which held, in effect, you can’t use force against a police officer just because you think he is wrongfully entering your property. (See my prior entry here.)
At common law, a person had the right to resist, using reasonable force, the unlawful entry of police into one’s home. The Indiana Supreme Court decided, in effect, times have changed since the old days, and the costs outweigh the benefits in our modern times. In the bad old days, the king’s men could abduct you, hold you indefinitely, and torture you. And, if you did get out of the dungeon, you had no recourse against the king. Today, you have a right to bail, speedy trial, a probable cause hearing, etc., and you can sue the government for false imprisonment and other violations. With those protections, the dangers are reduced, and make the dangers on that side of the scale less than the dangers you get when you allow people in tense situations to make snap legal decisions about whether police action is lawful and use force to resist the police.
Not mentioned in this decision, but quite possibly on the judges’ minds, was the prospect of everyone who used force against the police making up some unlawful entry story in retrospect and making violence against the police a more viable alternative for criminals.
It looks like this is the subcommittee’s second meeting. The first was on June 29. Today, their agenda is to consider draft language and select a next meeting date. If anything, I’d suggest that they authorize resistance where there is imminent risk of significant physical harm. What I’d want to avoid is encouraging criminals to resist now, make up reasons for resisting later; particularly where citizens acting lawfully could gain redress by having a court or some neutral party sort it out later without encouraging violence in what could often be a tense, rapidly developing situation.
So, if anyone breaks my front door down, but says “Police!” when they do it, I can’t resist?
I’ve been noticing a disturbing trend where the police have moved away from having a polite discussion along the lines of “Hello, I’m Officer Jon Law. I need you to come with me downtown”. Today, it is *FLASHBANG* “POLICE! SEARCH WARRANT!” even if the police have no reason to assume the person is going to resist with lethal force.
If you don’t think this is happening, see this. I also have a router I leave open for public access to the Internet, just like the coffee shop I’m sitting at now. If someone busted down my doors, I’d have a decent chance of responding with lethal force since I know that I’ve committed no crime that would warrant that.
Sure you can resist. And if they aren’t actually law enforcement, you don’t have a problem. And if it actually was the police but they were putting your life in danger, maybe the penalty for resistance is a better deal than what would have happened if you didn’t resist.
But, if you’re determined to prevent the police from doing their job because you are doing something illegal or just to be a dick; you shouldn’t be able to, after the fact, claim you were really doing it because you thought what the police were doing was wrong.
Actually a statute already gives people the right to resist, and there is no exception for when the intruder is police. All the discussion by the SCT about the Constitution and common law should have been irrelevant as there is a statute that gives people that right. The problem is the parties completely missed the existence of the statute in their briefing (I read those briefs) and the SCT did as well. While they shouldn’t have to, all they have to do is amend the statute to explicitly say it includes when the intruder is police.
As far as your concern about reasons for the resistence being made up later, there is also the possibility the police knowing they did wrong would also make up a legitimate reason later. I don’t know how you combat that.