Opinion and Forefront

WOUDENBERG: Indiana Supremes blew it with police case

June 11, 2011

Anita Y. WoudenbergSuppose a police officer, perhaps late at night, rings my doorbell. Being a concerned law-abiding citizen (and the only resident in my home), I answer the door only to be intruded upon without a warrant or even probable cause.

Knowing my rights (and probably fearful because I am uncertain as to the officer’s intentions), I attempt to close the door on him.

According to the Barnes v. State of Indiana decision issued by the Indiana Supreme Court last month, I have no legal right to close the door to protect myself–-even if I simply wish to call the police department to confirm that the individual at my door is, indeed, an officer.

Instead, says the court, I can remedy the illegal entry through civil lawsuits and disciplinary procedures against the police officer.

But what if these options are insufficient? What if I am harmed by the police officer? Isn’t preventing the harm better than any “cure” the civil courts might offer?

While it’s comforting to know that I can file a disciplinary complaint against an officer who violated my rights and sue for damages, the fact that I can do so shouldn’t take away my basic right to defend myself.

It is situations like these—of government and those in authority abusing their power—that motivated adoption of the Fourth Amendment in the first place.

Indeed, the amendment itself proscribes “unreasonable searches and seizures” of persons and houses and requires warrants predicated on probable cause. It is hardly a leap of logic to conclude that this proscription includes unlawful entry, which, given that it is unjustified under the law, would be presumptively unreasonable.

Part of the decision’s failing is that it focuses on the right to reasonably resist arrest, observing that there is a legal trend to eliminate this right. Part of this trend is based on the fact that those wrongfully arrested have available to them significant post-arrest remedies, such as being able to post bail and being afforded prompt hearings.

Even assuming that no right to reasonably resist arrest exists, this does not translate into a denial of a larger, broader right to reasonably resist unlawful entry.

The court does not even limit its decision to say there is no right to reasonably resist unlawful entry done in an effort to execute a search or an arrest, which is the factual context of the case: The police officers were denied entry into an apartment where a domestic violence dispute had been reported and sought to investigate and ultimately make an arrest relating to the dispute.

Rather than limit the decision to its facts, the court instead sweepingly discarded the reasonable resistance right in its entirety.

That the legal options available to remedy governmental abuse have progressed since the Magna Carta in 1215 is not justification for abolishing the rule, as the court reasoned. Prevention is better than the cure. The government is of the people, by the people, and for the people.

A “reasonable resistance” rule serves as a reminder of this foundational principle and imposes parameters upon those whom we allow to ensure peace and impose justice.

I am not advocating unreasonable resistance (which has substantial nuances of its own). Nor am I advocating resistance in the case of lawful entry.

But when it comes to the government’s improperly intruding on the private homes of its citizens, the Fourth Amendment must at least mean to ensure basic, preventive protections to the individual who gave the government its power in the first place.

The Indiana Supreme Court got it wrong. If our high court does not have the opportunity to immediately reconsider its decision, perhaps the U.S. Supreme Court will be able to set our court straight.•

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Woudenberg practices constitutional law at Bopp Coleson & Bostrom in Terre Haute. Send comments on this column to ibjedit@ibj.com.

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