Death Warrant for Fourth Amendment?

May 13th, 2011

By Dan Miller

LawFortunately, the Fourth Amendment is not dead.

In Barnes v. State of Indiana, the Indiana Supreme Court held on May 12th “that there is no right to reasonably resist unlawful entry by police officers. (emphasis added)” However, the facts of the case as recited in the decision show that this holding went far beyond those facts to intrude, absurdly, into Fourth Amendment jurisprudence.

Officer Lenny Reed, the first responder, saw a man leaving an apartment with a bag and began questioning him in the parking lot. Upon identifying the man as Barnes, Reed informed him that officers were responding to a 911 call. Barnes responded that he was getting his things and leaving and that Reed was not needed. Barnes had raised his voice and yelled at Reed, prompting stares from others outside and several warnings from Reed.

Officer Jason Henry arrived on the scene and observed that Barnes was ―very agitated and was yelling. Barnes ―continued to yell, loudly and did not lower his voice until Reed warned that he would be arrested for disorderly conduct. Barnes retorted, ―if you lock me up for Disorderly Conduct, you’re going to be sitting right next to me in a jail cell. Mary came onto the parking lot, threw a black duffle bag in Barnes’s direction, told him to take the rest of his stuff, and returned to the apartment. Reed and Henry followed Barnes back to the apartment. Mary entered the apartment, followed by Barnes, who then turned around and blocked the doorway. Barnes told the officers that they could not enter the apartment and denied Reed’s requests to enter and investigate. Mary did not explicitly invite the officers in, but she told Barnes several times, ―don’t do this and ―just let them in. Reed attempted to enter the apartment, and Barnes shoved him against the wall. A struggle ensued, and the officers used a choke hold and a taser to subdue and arrest Barnes. Barnes suffered an adverse reaction to the taser and was taken to the hospital.

Based on these facts, it is evident that an adequately instructed jury could quite reasonably have convicted Barnes on all counts.

When Barnes was tried on several counts, including “resisting law enforcement,” he requested that an instruction be given to the jury concerning “the right to reasonably resist” when police unlawfully seek to enter a residence. The trial court refused to give the instruction. Barnes was convicted and the Court of Appeals held that the trial court had erred, harmfully to Barnes; it remanded for a new trial. The Indiana Supreme Court disagreed,

Barnes contests that his tendered jury instruction should have been given because it was a correct statement of a viable legal defense supported by the facts and because that defense was not covered by the other instructions. We acknowledge that the Court of Appeals followed its own precedents in its analysis. Now this Court is faced for the first time with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers. We conclude that public policy disfavors any such right. Accordingly, the trial court‘s refusal to give Barnes‘s tendered instruction was not error.

The English common-law right to resist unlawful police action existed for over three hundred years, and some scholars trace its origin to the Magna Carta in 1215. . . . The United States Supreme Court recognized this right in Bad Elk v. United States, 177 U.S. 529, 535 (1900): ―If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest. The Supreme Court has affirmed this right as recently as 1948. United States v. Di Re, 332 U.S. 581, 594 (1948) (one has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases).

The Indiana court went on to say,

We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. E.g., Warner, supra, at 330 (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist); State v. Hobson, 577 N.W.2d 825, 835–36 (Wis. 1998) (citing the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies). 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—as evident by the facts of this instant case. E.g., Hobson, 577 N.W.2d at 836 (―But in arrest situations that are often ripe for rapid escalation, one’s measured’ response may fast become excessive.). Further, we note that a warrant is not necessary for every entry into a home. For example, officers may enter the home if they are in ―hot pursuit of the arrestee or if exigent circumstances justified the entry. E.g., United States v. Santana, 427 U.S. 38, 42–43 (1976) (holding that retreat into a defendant‘s house could not thwart an otherwise proper arrest made in the course of a ―hot pursuit‖); Holder v. State, 847 N.E.2d 930, 938 (Ind. 2006) (Possible imminent destruction of evidence is one exigent circumstance that may justify a warrantless entry into a home if the fear on the part of the police that the evidence was immediately about to be destroyed is objectively reasonable.). Even with a warrant, officers may have acted in good faith in entering a home, only to find later that their entry was in error. E.g., Arizona v. Evans, 514 U.S. 1, 11 (1994); United States v. Leon, 468 U.S. 897, 922–25 (1984). In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance.

Here, the trial court‘s failure to give the proffered jury instruction was not error. Because we decline to recognize the right to reasonably resist an unlawful police entry, we need not decide the legality of the officers‘ entry into Barnes‘s apartment.

Finally, lest there be any question as to what the Indiana Supreme Court meant to do, it stated “In sum, we hold that [in] Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.”

Appellate courts generally limit their legal analyses to the facts of the case before them, for good reason. Failure to do so not only results in otherwise unnecessary future litigation, it also changes the law for no valid reason. The creation of new law is the proper function of legislatures, not courts. Here, however, what the court did went well beyond what even the Indiana Legislature could properly have done.

Quite properly, Justice Dickson stated in a dissent, “In my view, the wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad.” Justice Rucker also dissented, despite his belief that the right to resist an unlawful police entry is passe. He dissented because

the common law rule supporting a citizen’s right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the United States Constitution. Indeed, ―the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Payton v. New York, 445 U.S. 573, 585 (1980). In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.

Under the court’s quite unnecessary holding that “there is no right to reasonably resist unlawful entry by police officers (emphasis added),” there would be no right to resist even a patently unlawful police intrusion into one’s home to force payment of a bribe, to steal one’s silverware or for other grossly illegal purposes. Nor would there even be a right to have a jury decide whether that’s what happened. Far fetched? Sure. Are there bad cops? Sure, again. This holding gives them great opportunities.

This case may not get to the Supreme Court of the United States; that requires time and money. It should get there because it purports to abrogate — in Indiana — prior Supreme Court rulings on the Fourth Amendment and because cases embodying bad law tend to breed and multiply. They seem to enjoy higher fertility rates than do cases embodying good law.

(This article was first published at The PJ Tatler.)


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12 Responses to “Death Warrant for Fourth Amendment?”



  1. Clarissa |

    This is a completely ridiculous ruling. Were the justices of Indiana Supreme Court on drugs when they made the ruling? This is an egregious violation of the spirit of the Constitution, in my opinion.


  2. Dan Miller |

    Hi, Clarissa. Good to hear from you again.

    I hope they were on drugs when they made the ruling; I don’t recall having read a decision reaching quite so deeply into the stupidity vat in search of a rationale for a very long time.

    It reminds me of the old story about a notice posted at an advertising agency:

    Account executives are permitted to drink anything they may wish at lunch, except vodka. It is preferable for our clients to assume that you are drunk than to realize that you are stupid.


  3. Tom Carter |

    I agree that it’s a ridiculous ruling, but…. Maybe the problem here is the difference between common sense and constitutional law. When dealing with an armed police officer (or worse, a SWAT team) trying to enter your home in a manner that you think is illegal, you’d be a fool to resist beyond a certain point because you might well get killed. As a corpse, you’d not be in much of a position to savor the fact that you were right all along.

    I’ve had a simple philosophy for many years: When dealing with someone who’s packin’ heat, keep your mouth shut and do whatever he or she wants. If the situation is so dangerous and extreme that you simply must resist, then go ahead, but don’t expect a good outcome. It’s far better to sort it out later, if it needs sorting.

    Waco and Ruby Ridge were good examples of how much better off citizens would have been if they had cooperated with law enforcement and then defended their rights (as they understood them) in court and other less deadly forums.


  4. Dan Miller |

    Tom, I think it’s a ridiculous ruling because the court went far further than necessary or even appropriate under the facts of the case. Courts rarely go that far beyond the facts before them to render advisory opinions, there are good reasons for not doing so and ordinarily to the extent that they do it’s dictum, not binding in subsequent proceedings. Here, however, the court made it clear that what it said was not dictum, that it was the court’s holding and therefore binding on all lower courts within the state.

    The conviction was and should have been a slam dunk. The jerk unreasonably resisted a lawful entry by the police and got what he deserved. Had a proper instruction been given to the jury, the result would almost certainly have been the same and that’s fine. The court could perhaps have ruled that the trial court had erred in refusing to give an instruction but that the error was harmless. The decision does not indicate what exactly the requested instruction may have been, but the trial judge could easily have instructed the jury as to what the law means by “unlawful entry” and left it up to the jury to decide whether the facts indicated a lawful or unlawful entry.

    However, to go as far as the court did, by issuing a blanket ruling that “there is no right to reasonably resist unlawful entry by police officers.(emphasis added)” is worse than stupid and gives rogue cops an invitation to do as they please regardless of the law. A probably unrealistic parade of horrible examples can easily be imagined. Here’s one: John and Mary have been married for a year. Prior to their marriage, Mary had an abusive relationship with Paul, a police officer. One day, Paul follows Mary home from work. On being told by Mary that Paul is a bad man with whom she had had an abusive relationship, that he had followed her home and that she is very afraid of what he might do, John refuses entry to Paul. Paul shows his badge, demands entry and attempts to enter through the use of force.

    John’s Alternatives: continue to bar Paul’s entry using such force as is reasonably necessary and be arrested, or let him in to have at Mary and perhaps “wrestle” her to the floor.

    Mary’s Alternatives: resist Paul’s advances and be arrested or yield and perhaps be raped. Could John at that point lawfully try to make Paul stop? Under the court’s holding, I don’t know. He obviously should be able to do so. But then I think that in the circumstances he should also have been permitted to block Paul’s access to the house.

    This is, obviously, an extreme situation and unlikely to happen in the United States — because we have that silly old Constitution, because the courts usually respect it and because the police are usually honorable people who also respect the limitations it imposes. The scenario is far more realistic in some countries with no similar constitutional protections against those acting under color of governmental authority. It is common in some such countries for police to make traffic stops to collect bribes rather than for any legitimate purpose. In Venezuela, the police can do pretty much as they please, and often do. That’s not the sort of activity we want in the United States, but with the multiplication and spread of bad law such as just created by the Indiana Supreme Court it could “happen here.”


  5. Tom Carter |

    I’m not even sure why there should be a constitutional issue here. It’s well-established that an official (policeman, military officer, etc) who is not functioning under the cloak of official authority cannot legally exercise authority. In your example, Paul is no longer functioning as a police officer when he tries to enter that home for personal reasons, and John can resist him, presumably even to the point of deadly force in defense of himself or another. That has nothing to do with the Constitution, and I don’t know how the Indiana court could have thought otherwise.

    The point remains, though — let the man with the gun do whatever he wants, to the extent possible, and sort it out later.

    It gets a lot stickier when the police think they’re right, even though the homeowner may know they’re wrong, e.g., police kicking down the door pursuit to a warrant search, but they’ve got the wrong address. If the homeowner can’t talk them out of it, his best solution is to let them search, while he sits in the living room drafting his lawsuit against the city.


  6. Dan Miller |

    Tom, it became a constitutional issue simply because the Indiana Supreme Court made it one. As I have noted, and attempted to show, there was no need to enter that morass and the court should not have done so. Sometimes, “good cases make bad law;” here, a bad case made horrible law, applicable throughout the state until countermanded legislatively, by the Indiana Supreme Court itself, or by the U.S. Supreme Court.

    Based on the attention the case is getting, little if any of it favorable, the state legislature just may tackle the matter; it should.


  7. Brian |

    Here in my adopted home state, resistance to excessive force is codified. I don’t know about resistance to unlawful entry, but unlawful entry can be dealt with as criminal trespass.

    The painful thing for me is that the constitution was drafted to prevent this very thing. Unfortunately, we’ve accepted the chipping away at our freedoms for some time, as the 5th amendment has been vitiated on at least two fronts, and the 9th and 10th amendments have been rendered all but moot.

    Next thing you know, habeas corpus, ex post facto and bills of attainder will be out the window, too. Eminent domain has also been grossly abused, with the support of the courts, I might add.


  8. Indiana Court Decision Makes Less Sense than Before | Geo436 |

    […] have not been answered.  However, combine the news as reported with Thursday’s decision by the Indiana Supreme Court that “that there is no right to reasonably resist unlawful entry by police officers. (emphasis […]


  9. Just Do Whatever the Police Say | Geo436 |

    […] City of Brotherly Love, seems to fit neatly into the jigsaw puzzle with this piece about a recent Indiana Supreme Court decision and this one about an incident in Pima County, […]


  10. Michael |

    I don’t understand all details of the court case but I do understand short-sighted arrogant verbiage of three Supreme Court Justices. Justices who believe, and want us to think: (1) Law enforcement represents some kind of supreme being who must never be questioned or resisted(Hitler? Stalin? Lenin?), (2) There are no bad law enforcement officers, (3) We are all wealthy and can finance lawsuits against law enforcement agencies, and (4) Criminals will never disguise themselves as law enforcement officers forcing entry into our homes.

    Indiana, in many ways, seems to be swinging back-and-forth between extremes. Traditionally a conservative state, She veered sharp left and helped elect a socialist/leftist president. I suppose three Indiana Supreme Court Justices think we want them to disregard our Nation’s Constitution and traditions and pick and choose which of our RIGHTS they will recognize. They brush aside more than two hundred years of history and precedent and shoot from the hip. When did “public policy” trump constitutional rights?

    The foundation of our nation is the Constitution. If we don’t demand adherence to the Constitution, and reject judges’ fleeting opinions and preferences, our country will turn into another European socialist society — or something worse — a police state. Can Indiana Supreme Court Justices be impeached? Is flagrant disregard of the Constitution of the United States cause for impeachment?

    Where is the ACLU when they’re needed? Too busy suing school children who bring Bibles to school and want to recite the pledge of allegiance, I suppose.

    If anyone knows of a legitimate fund to bring this case to the U.S. Supreme Court please let us know, I want to contribute.


  11. Good Supreme Court Decision on Warrantless Searches | Geo436 |

    […] rest of us who depend on the police to enforce them. The decision in no way resembles that of the Indiana Supreme Court stating that there is no right reasonably to resist an unlawful police intrusion. It in no way […]


  12. Eric |

    Do I have a lawsuit? I live in indiana. My friend fell asleep on my front porch and a police officer saw him came up on my front porch woke him up and asked if he lived here he replied “No” the officer wouldn’t let him back inside until I came downstairs and gave the ok. By the time I woke up came downstairs the officer was inside my house shining a flashlight looking around. He found marijuana paraphernalia before i even new he was inside. I GOT CHARGED WITH POSSESSION WHILE I WAS SLEEPING………Do i have any options even on a federal level…..I felt so helpless….it’s sad when i’m more scared of police than of criminals


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