Did Indiana Really Just Legalize Cop Killing?

Thursday, June 14th, 2012

I answer that question in my latest piece for Huffington Post.

(Spoiler: No.)

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28 Responses to “Did Indiana Really Just Legalize Cop Killing?”

  1. #1 |  John | 

    I just discovered this website a few weeks back. Great article, and thanks for what you do.

  2. #2 |  Mannie | 

    More than anything else, the Indiana law is a defense against bogus charges of Resisting Arrest after an illegal break-in by cops.

  3. #3 |  MRK | 

    In practice the law isn’t going to make any difference. Prosecutors and police departments are far too cozy with each other.

    Cops will still be allowed to shoot whomever they please and get a slap on the wrist at worst. While a citizen defending himself from a cop raping his wife will always be a cop killer.

  4. #4 |  Burgers Allday | 

    The Indiana Supreme Court could have simply ruled that as a result of the call, Barnes’ state of mind and his wife’s pleas provided exigent circumstances for police to enter the Barnes’ home legally.

    I think that would have been a much worse ruling, much more damaging to civil rights in the long run. Exigent circumstnces is a steep and slippery slope as it is, and this would be a couple running strides downwards.

    For example, exigent circumstance does (or at least should) require probable cause that a crime has been committed, or that evidence of a crime is present. The Indiana police had probable cause of neither here.

    Under the closely related “emergency exception” they not only lacked a “reason to believe” that there was a “serious injury,” but actually had good reason to know that there was not a serious injury existent in the house prior to entry.

    It is not like he was preventing his wife from leaving the house.

  5. #5 |  Irving Washington | 

    It is not like he was preventing his wife from leaving the house.

    Exactly! She was in enough danger or had been injured sufficiently that she felt she needed police help but then didn’t exit the house when they got there? The outcome that would have best preserved peace was for her to leave.

  6. #6 |  Radley Balko | 

    I think that would have been a much worse ruling, much more damaging to civil rights in the long run. Exigent circumstnces is a steep and slippery slope as it is, and this would be a couple running strides downwards.

    The wife called 911 to report domestic violence. The guy was visibly angry. The wife plead with her husband to let the cops come inside. The court had more than enough room to issue a very narrow ruling in this case to say those factors were sufficient for police to enter the home. Not saying I’d have agreed with it, but to say that would have done more damaging to civil rights in the long run is absurd. The court overturned 700 years of common law, and became the first state supreme court in the country to rule (on policy grounds, no less) that citizens aren’t permitted to use force of any kind to prevent police from unlawfully entering their home.

    The two outcomes aren’t even close.

  7. #7 |  Player1 | 

    I like it. Cops are people, not the pope or a demi-god placed here to lead and champion the people to Beulah land. I’ve never understood why you couldn’t say “No” or physically stop a police officer from breaking the law and violating your civil rights. Hopefully more like-minded legislation can be passed.

  8. #8 |  Burgers Allday | 

    Remember the facts. The husband was outside when the police got there. The wife, Mary, came outside while the police were outside with her husband. She instructed her husband to come back inside and take the rest of his stuff. After he followed her into the house as she requested, the police demanded to be allowed in. Mary pleaded with her husband to acquiesce to the police demand to come in. That is not the same as pleading for the police to come in, or equivalent to invititing them in. She invited her husband back in the house, not the police.

    Like I said, if the wife felt in danger then she could have left. If she felt in danger she would not have invited him into the house.

    If it becomes clear to the police that they can warrantlessly enter a house when there is no reason to believe a crime has been committed, and quite a few reasons to believe that no crimes were committed (as in the Barnes case), then that is going to adversely affect a lot, lot more people than the rule against resisting unlawful entry would.

    If the police wanted to prevent or investigate a crime then they should have called Mary out of the house to discuss it. They should have done this when Mary was out of the house, but they also could have done it by calling her back out after she went in. But really, they had enough to know that there was no exigency. If there was an exigency then they would have had Mary leave the house. This wasn’t about exigency. This was about the issue of whether a 911 call is always an automatic ticket to get into a house. Sometimes it is, but that should not be the general rule.

  9. #9 |  el coronado | 

    “Hopefully, more like-minded legislation can be passed.”

    They can write and pass all the new laws they want, but…uh…guess who’s in charge of on-site interpretation & enforcement of those ‘cop power limitations’ laws? Whoops. Jackson knew the score way back when: “[the courts] have made [their] decision. Now let [them] enforce it.”

  10. #10 |  Burgers Allday | 

    Another bad thing the trial court did is to say that you can be criminally charged for yelling at police officers (even if that hasn’t drawn a crowd).

    The Indiana legislature needs to take some action on that, too. The ability to arrest somebody up for yelling at police (when there are no non-police witnesses) is extremely prone to abuse. Again, that is something that comes up orders of magnitude more often than people who knowingly resist police entry into their residence.

    Oh, yeah, and Corey Maye still would have been able to plead self-defense because he did not believe it was police. There is nothing in the Barnes decision that suggests Barnes could not have pleaded self defense if he had no reason to believe the men trying to get in were policemen.

  11. #11 |  Burgers Allday | 

    –Another bad thing the IN SC decision did–

  12. #12 |  RobSmalls | 

    “Just last week, a police union leader in Arkansas absurdly called for a federal criminal investigation of citizens who criticize police misconduct…”

    That was in North Carolina, not our beloved Razorback State. An excellent column, as usual. I didn’t realize the “Open Season on Indiana Cops” theme was so pervasive throughout the rest of the media regarding this issue.

  13. #13 |  Steve Verdon | 

    Oh, yeah, and Corey Maye still would have been able to plead self-defense because he did not believe it was police.

    LOL…can I have some of what you are smoking?

  14. #14 |  C. S. P. Schofield | 

    “In the end, that’s all this amendment does,” Rutherford said. “It really just puts police officers on the same level as everyone else.”

    And BOY are the cops going to be steamed about that!

  15. #15 |  Burgers Allday | 

    @12: I didn’t say he’d have won. I just said that nothing in the legislatively-overruled decision in Barnes would have prevented Maye from saying that cases where you don’t know if it is really popo (as may didn’t) are different than cases where you know (as Barnes did) that it really is popo.

  16. #16 |  perlhaqr | 

    Sadly, no.

  17. #17 |  Radley Balko | 

    Burgers:

    I interviewed three attorneys in Indiana about the law, including the head of the state public defender’s association, a prosecutor, and a gun rights attorney who helped get it passed. They all said someone in Maye’s position would not have been permitted to argue self defense under the Indiana Supreme Court ruling.

  18. #18 |  John P. | 

    Am I the only one who sees this as cops being upset, they can no longer illegal and unlawfully break into someones home and get away with it?

    Seems to me thats the gist of the anger the cops have with this law.

  19. #19 |  Burgers Allday | 

    Barnes did not argue self defense. Barnes did not allege that he acted in self defense. The case says nothing about self defense.

    I think you are going to find other critics saying the same thing about your argument related to people like Cory Maye and Matthew Stewart.

    The only thing Mr. Barnes was defending against was a trespass.

    The best cases for your sources to check out are:

    Wilson v. State, 842 N.E.2d 443, 447-48 (Ind.Ct.App. 2006) (right to resist excessive force by the police if the excessive force threatens death or great injury)

    NAIL v. GUTIERREZ, 339 Fed.Appx. 630 (7th Cir. 2009) (mere trespass by the police onto one’s property is not considered as excessive force under the case law of Wilson, so Wilson’s right to resist excessive force does not apply)

    While Barnes overruled another Indiana Court of appeals case called Casselman, Casselman did not deal with excessive force and, more specifically, did not deal with any kind of excessive force that threatened to cause any sort of injury to the searchee. Notably Barnes does not mention Wilson (which it probably would have if it meant to overrule Wilson).

    It is highly likely that Indiana law would still be deemed to recognize a right to resist excessive force likely to cause death or great injury. While there has been a trend away from recognizing right to resist unlawful arrest (discussed in Barnes), the nationwide trend has been to continue to recognize a right to resist excessive force by the police.

    And, of course, if the arrestee doesn’t know it is police (unlike the situation of resisting excessive force when the arrestee knows it is police, as in Wilson), that raises a whole collection of other issues which are not addressed by the rationale of Barnes which rationale clearly and repeatedly assumes that the arrestee (or the searchee as the case may be) knows that it is police with whom she is dealing.

    What are you doing lissening to lawyers anyway, Mr. Balko? I thought you knew better than that!

  20. #20 |  Radley Balko | 

    . . . the nationwide trend has been to continue to recognize a right to resist excessive force by the police.

    Where do you get this? The reason the Indiana amendment is controversial is because every other state with a Castle Doctrine law explicitly exempts police officers.

  21. #21 |  John | 

    “Spoiler: No”

    WAY TO RUIN THE ENDING, RADLEY (/jokinglycrazy_nottheforseriouskind)

  22. #22 |  nigmalg | 

    Am I the only one who sees this as cops being upset, they can no longer illegal and unlawfully break into someones home and get away with it?

    Seems to me thats the gist of the anger the cops have with this law.

    I think the major police argument is that people may be more likely to fight back in less serious situations. In their mind, they might actually think people will shoot them for writing them a ticket.

    Is this be a likely outcome? I don’t see this hypothetical increase in regular serfs shooting cops. Will the thugs that have a predisposition for shooting officers feel empowered? I don’t know, but it’s very important we never punish people defending their own lives no matter what colors the perpetrator is wearing.

  23. #23 |  Burgers Allday | 

    Where do you get this? The reason the Indiana amendment is controversial is because every other state with a Castle Doctrine law explicitly exempts police officers.

    This will probably be boring for you, but here goes:

    The minimum set of rights that a US citizen has against a policeman is determined by the Constitution. For example, if Rhode Island made a law that made self-defense categorically illegal (whether the attacker was a policeman, a butcher, a candlestick maker or anyone else) then that Rhode Island law would almost certainly run afoul of numerous Constitutional provisions. By this Constitutional authority, the federal courts would be expected to declare this hypothetical Rhode Island law as unConstitutional. This is a hypothetical, of course, because no state is likely to pass such a law.

    The Constitution probably also sets a maximum on self-defense rights that may be accorded by state law. If New Hampshire passes a law that says one can use violent self defense against any other person who has the capacity and access to attack one (even in the absence of an imminent threat from that other person), then that would probably also be unConstitutional and federal courts would be expected to declare this hypothetical NH law as unConstitutional for violating the rights of the “other person” who can be attacked in pre-emptive style self-defense under the bad NH law.

    Here is where it gets good:

    In between the Constitutional maximum and the Constitutional minimum, states have at least some latitude to set their own individual laws with respect the level of permissible self-defense and defense of others and defense of property. Maybe Texas says that you can use force in defense of self, others, your own property and/or the property of others. That is very permissive self-defense law. Maybe NY law says that you have to always retreat, instead of using force against others unless such retreat is certain to get yourownself hurt. This is a much more restrictive kind of self-defense law. It is quite possible that both these types of self-defense law are Constitutional. States have some discretion (within limits as explained above) in setting the permissible level of self-defense. Not every state has to permit/deny self-defense under the same circumstances. Federalism in action!

    Moving now to “Castle Doctrine,” this refers to different, but similar, sets of laws (commonlaw and/or statutory law) in certain states that afford an individual a relatively large degree of self-defense rights. It is especially popular in Southern states where white homeowners want to protect themselves from (usually black) robbers, thieves, trespassers and burglars. A given state doesn’t have to have a Castle Doctrine set of laws, but it can and some do.

    However, if a state does have a Castle Doctrine law, then this law must be consistent with the Constitution. For example, if the Castle Law said that one could use deadly force to protect the property of others, so long as the target of the deadly force was brown or black but not white, then this kind of Castle Doctrine law would be unConstitutional for violating Equal Protection.

    Moving now to the issue of self-defense against law enforcement officers, the right to use self defense against searches and seizures* being performed by law enforcement officers is thought to be at least somewhat controlled by the Fourth Amendment. The Fourth Amendment is thought to guarantee at least some minimum degree of permissible self defense against an LEO, and it is also thought (at least by some, not necessarily me) to set a maximum on the degree/type of legal self-defense that may be used against an LEO by a regcit when the LEO is a-searchin’ or a-seizin’.

    Moving now to the situation in Indiana, at the time Barnes was decided in IN, Indiana law was apparently as follows: (i) it did not have a Castle Doctrine statute that covered intrusions by LEOs**; (ii) IN did have commonlaw (specifically, the Casselman case) recognizing a commonlaw right to resist unlawful arrest by an LEO; and (iii) IN also had commonlaw (the Wilson case) recognizing a right to defend against certain serious types of excessive force being administred by an LEO.

    What Barnes wanted at trial was a jury instruction that said as follows:

    “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 IN Supreme Court interpreted this as an attempted invocation of the commonlaw represented by Casselman. The Supreme Court said that the commonlaw of Casselman was no good anymore, and that the commonlaw had evolved (at least in IN) so that the mere fact that entry was unlawful could not justifY force in self-defense by Mr. Barnes. The Barnes opinion also recognized that this commonlaw of the right to resist unlawful entry, merely due to the fact that the entry was unlawful, had been recognized by Bad Elk and another US Supreme Court case as Constitutionally required by the Fourth Amendment. However, the Barnes opinion said that these US Supreme Court precedents were too old to be considered as still-good Constitutional law and that lower courts and commentators had effectively overruled these old cases,*** meaning that the Indiana Supreme Court was free to refashion Indiana’s commonlaw on this point. And refashion it did. Barnes overruled Casselman and declared that Indiana no longer recognized a right to resist an unlawful entry by an LEO just because it was unlawful.

    However, Barnes above-quoted jury instruction also mentions “excessive force.” The Barnes court could have, and, for the sake of clarity, probably should have interpreted this as an attempt to additionally invoke the commonlaw self-defense rights of Wilson.**** There is a strong argument that the selfdefense right of Wilson is also Constitutionally required by 4a, in addition to being recognized by IN commonlaw. To refresh, the selfdefense right of Wilson is the right to resist excessive force, whether the search/seizure is lawful or not, so long as the excessive force is believed to lead to the threat of death or serious injury.

    Alas, because the Barnes court ignored the Wilson-based commonlaw/Constitutional law, it is unclear exactly what they would have done if Wilson had been raised more clearly by Barnes. My guess (and I think it is correct) is that they would have disposed of it the way the Nail court (see case cite, infra) disposed of a similar invocation of Wilson. Specifically, what the Nail court did was to say that an LEO’s unlawful entry, in and of itself, is not the type of excessive force that is likely to lead to serious injury, making Wilson inapplicable. What your buds of the IN criminal bar are telling you is that Barnes overruled Wilson. They are entitled to their opinions, of course, but those opinions are wrong. I believe Wilson is still good commonlaw in Indiana, and also that it is a Constitutionally mandated bit of commonlaw under 4A, notwithstanding that the fact that the related commonlaw right of resisting an unlawful arrest (merely because it is unlawful) has apparently fallen by the wayside (at least in the view of many ppl).

    Now, the Indiana governor and legislature have stepped in to prospectively moot the question of whether Wilson rights apply to forcible unlawful dwelling entries by LEOs. They did this by expanding the state Castle Doctrine statutes of Indiana. Good for them! Generally better to settle questions by statutes than commonlaw. The Indiana policeman’s bar can be expected to argue, in future cases, that this version of the Castle Doctrine violates Costitutional MAXIMUMS on permissible self-defense law under 4A. Myself, I don’t think that 4a should be held to provide ANY special protection specifically for LEOs against state self-defense laws, but Professor Kerr, and his ilk, are likely to vigorously argue to the contrary. The criminal defense bar is likely to continue muddling along in its befuddled way and not know what to make of any of this. If IN’s new statutes are declared unConstitutional, then Wilson will become relevant again in Indiana.

    Closing note: PLEASE, PLEASE, PLEASE do not advocate for any more expansions of the “exigent circumstances” exception to 4A. This expanding exception is the biggest threat to domestic liberty of US citizens there is. You are playing with dynamite there. There is a real and imminent threat that 4a is in the process of being swallowed whole by this burgeoning exception. Don’t let your gun lovin’ side blind you to the bigger problem.

    FOOTNOTE(S):

    * Seizures includes attacks. If a policeman shoots you in the lung, for example, that is a kind of seizure.

    ** At least Barnes did not argue at the IN Supreme Court that his self defense was authorized by any IN statute.

    *** For the record, I personally disagree with this part of Barnes.

    **** Actually, Barnes trial lawyers should have tendered two separate jury instructions, one based on Casselman and the other based on Barnes. This sloppy lawyering is what happens when defense lawyers are outspent by prosecution. Defense lawyers, generally speaking, aren’t “eggheaded” enough.

  24. #24 |  SamK | 

    Thanks Burgers, that was both detailed and readable.

  25. #25 |  Burgers Allday | 

    correction:

    –one based on Casselman and the other based on WILSON–

  26. #26 |  Helmut O' Hooligan | 

    “In the end, that’s all this amendment does,” Rutherford said. “It really just puts police officers on the same level as everyone else.”

    And for this reason the police unions are outraged. Says a lot about police unions.

  27. #27 |  John | 

    Amazing. With a law that actually protects citizens and upholds what I would call Rule of Law (no are above the law, not even those administering or crafting law) we have our new media supporting police state policies.

    It’s also amazing that with both this type ridiculous spin, the insistence for being above the law by police unions and representatives and the multiple reported behaviors of our policing public servants that any can think we’re not at risk of becoming a police state.

  28. #28 |  Maggie McNeill | 

    Did y’all notice this horrifying comment on the HuffPo article? http://www.huffingtonpost.com/social/Dimensio/myths-and-misconceptions-_b_1596846_161531005.html

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