Legal View: Can homeowner resist unlawful entry by police?

By Pat Murphy

The Daily Record Newswire

Earlier this month, the Indiana Supreme Court issued a decision concerning the sanctity of the home that nearly gave Rush Limbaugh a stroke.

But for those of us who typically back the police in their tough fight against criminals, the ruling should not be all that big a deal.

In Barnes v. Indiana, the state supreme court held that a homeowner has "no right to reasonably resist unlawful entry by police officers.''

That ruling came in the case of Richard Barnes, who allegedly shoved a police officer against a wall during the course of a domestic dispute. Barnes' wife Mary had called police to the couple's Vanderburgh County apartment on Nov. 18, 2007, complaining that her husband was throwing things around.

Richard and Mary were apparently in the midst of a breakup and Richard was moving out.

Officers Lenny Reed and Jason Henry arrived at the scene in response to the 911 call and confronted an agitated Richard outside the apartment. There, too, they met Mary.

Richard told the officers to kindly mind their own business and he and his wife went back to their apartment. The officers followed, but Richard blocked them at the door. When Officer Reed attempted entry, a struggle ensued and Richard shoved the cop against the wall.

Naturally, this didn't set well with the officers, so Richard in short order found himself tasered, restrained in a choke hold, and arrested.

For taking on Officer Reed, a state jury convicted Richard of misdemeanor battery on a law enforcement officer, misdemeanor resisting law enforcement, and misdemeanor disorderly conduct.

Before the Indiana Supreme Court, Richard complained that police violated the Fourth Amendment when they entered his apartment without a warrant. On this basis, he whined that the jury should have been instructed that he had the right to reasonably resist unlawful entry by police officers.

Now, the right of a homeowner to resist unlawful entry probably has its origins in the Magna Carta and is support by U.S. Supreme Court decisions from early in the last century.

But the state supreme court in Richard Barnes' case decided that it was an outdated notion that should be dispensed with.

"We believe ... that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence," the state court said in affirming Richard's convictions.

Limbaugh on his radio show had a cow when he heard about the court's decision.

"It's as though the Fourth Amendment doesn't exist," Limbaugh railed. "In Indiana I guess it's official now: A man's home is no longer his castle."

Stepping back from Limbaugh's heated constitutional analysis, we can see that the Fourth Amendment still has plenty of life in the wake of the Indiana Supreme Court's decision.

Police still need a warrant, exigent circumstances or consent to enter a home. Without these lawful justifications, a homeowner will still be able to suppress evidence at trial.

Moreover, the aggrieved homeowner still has armies of lawyers eager to sue everyone in sight for a violation of his civil rights.

This case is much more about protecting police officers than individual rights.

The last thing we need is to give encouragement to the drunken yahoos in wife-beater T-shirts who feel they should be allowed to take on police under some Old West notion of defending hearth and home.

The reality is that the homeowner will lose that fight at the doorstep every time. The police have guns, training and reinforcements. Allowing a homeowner to defend his privacy rights at the scene will merely get someone hurt.

If the police do happen to be on the wrong side of the Fourth Amendment in a given instance, let the courts sort out the details and provide the appropriate remedy.

Published: Tue, May 24, 2011