Can the 'right to resist' become a license to kill?
The Model Penal Code — and supporting commentary — specifically prohibit use of force in resisting an arrest, even if that arrest is believed to be illegal
Unless you have been under a self-imposed media blackout in the past couple of weeks, you are familiar with the death of Trayvon Martin in Sanford, Florida. This shooting of 16-year-old Martin — who was killed by 28-year-old old neighborhood watch-captain George Zimmerman — raises serious questions relating to race, police procedure, and the efficacy of Florida’s “stand your ground” legislation. The shooting was tragic. The conduct of Zimmerman and the police handling of the investigation leave many unanswered questions. But this death of a young man also underscores a point that law enforcement groups in Indiana were attempting to make several weeks ago before the state legislature.
The Indiana situation, of course, involves the “right to resist” legislation passed by the State Senate and House of Representatives before a finalized version was sent to the Governor and signed into law late last week. The Indiana Senate, in response to public outrage over the Indiana Supreme Court’s May 2011 decision in Barnes v. Indiana, decided to revise the state’s use-of-force statute to provide a citizen the right to lawfully resist law enforcement officers who the citizen reasonably believes may be illegally entering his home.
Opposition to this legislation on the part of Indiana law enforcement is immsdiately apparent. Not as apparent is the necessity for the law, or even the public response to the Barnes decision. Admittedly, there have been numerous nationwide instances of wrongful police behavior and Fourth Amendment violations. But is this a continuing epidemic calling for some measured response? Are there not adequate remedies at law? I am not in any way an apologist for the government — 24 years in law enforcement have taught me that government officials are the least trustworthy of mammals — but human judgment itself is flawed and varied. The Indiana legislation leaves police officers at the mercy of such flawed judgment. The shooting of Trayvon Martin, brings the opposition argument of Indiana’s law enforcement community to reality.
Public Outcry Over State Court Ruling
The facts of the Barnes case are straightforward and present a scenario police across the country respond to daily. There was a domestic dispute between spouses, a response based on a call from the wife, no violence as of the time of the call, but an obvious concern necessitating the wife call to police. An officer responded and saw the husband leaving the apartment. The officer approached the husband, who engaged the officer with loud verbal responses and yelling, causing several uninvolved persons to stare.
A backup officer arrived and witnessed the husband acting in an agitated and disorderly manner. The husband was warned by the first officer he would be arrested for disorderly conduct if he did not calm down. The husband continued to be belligerent and returned to the apartment to obtain more of his belongings. The officers followed until barred by the husband from entering the apartment. The officers requested entry to investigate further, but were denied by the husband while his wife pled with the husband to let the officers in.
There was no explicit permission from the wife for the officers to enter the apartment, but they attempted entry due to the ongoing domestic dispute. The husband shoved one officer against the wall, a struggle ensued, and the officers resorted to a chokehold and TASER to subdue the husband.
The subsequent criminal trial resulted in a conviction of the husband for disorderly conduct, battery on a law enforcement officer, and resisting law enforcement. The husband — Barnes — appealed his conviction based on the trial court’s refusal to provide his requested jury instruction on the right of a citizen to reasonably resist unlawful entry into the home, and a separate claim regarding the sufficiency of the evidence against him. The Indiana Court of Appeals ruled in favor of Barnes on both grounds, finding that failure to provide the jury instruction was not harmless error, and that the disorderly conduct evidence was insufficient.
A new trial on the battery and resisting charges was then ordered by the court. The appeal to the Indiana Supreme Court focused on the common law right to reasonably resist unlawful entry by law enforcement. Indiana’s top court reversed the Court of Appeals and affirmed the conviction and sentence of Barnes. The Indiana Supreme Court ruled that “public policy disfavors such right” and the “right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.”
This is the point from which the public outcry and political response began. The case was brought back in court for re-hearing in September 2011 at which time the court continued to affirm Barnes’ conviction.
From Magna Carta to Model Penal Code
The original Barnes decision is a concise and well-written opinion that is clear in its logic and supporting case law. The author, Justice David, takes a little less than three pages to address the appellant Barnes’ contention that his legal defense jury instruction should have been given to the jury. In doing so, Justice David provides adequate reasoning for the court’s position, beginning with development of the common law right to resist from the Magna Carta to Model Penal Code revisions of the right in the 20th century. While many court opinions can be found to possess verbal clutter and belabored historical annotations and legislative histories, the Barnes opinion is an example of clarity and precision.
Unfortunately, the “right to resist” legislation does not take the same path of clarity. Instead, it raises more questions than it answers.
There are numerous problems with the legislation as drafted which would take a separate column to raise and address individually, however, it is worth noting the legal development of the common law right to resist doctrine to modern standards.
As outlined in the Barnes decision, the common law right to resist finds its origin in the Magna Carta, but was first established by judicial decision in a 1710 case, The Queen v. Tooley.[i] This common law right was eventually adopted in the states. [ii] The U.S. Supreme Court at the start of the 20th century endorsed the common law right to resist an unlawful arrest in the case U.S. v. Bad Elk.[iii] This case involved the shooting of an Indian reservation police officer who was attempting to execute an arrest warrant for another reservation police officer. The wanted officer, John Bad Elk, contested the legality of the warrant and sufficiency of the evidence that he committed a criminal violation. He shot at the officers coming to arrest him and killed one of them. The Supreme Court once again exhibited support for the common law rule in a subsequent case that did not involve the use of force, but focused on probable cause to arrest.[iv]
Several state court decisions separately recognized the common law right to resist unlawful arrest.[v] Officers in a number of states may be surprised to find the status of a citizen’s right to resist unlawful arrest is still protected by common law unless specifically denied by statute or case law. However, the Model Penal Code, a project begun in 1952 by the American Law Institute aimed at unifying penal law principles throughout the United States, introduced major revisions to the common law rule regarding the right to resist unlawful arrest. Article 3, section 3.04 of the Model Penal Code contains draft statutory language for the use of force in self-protection. This section is followed by several pages of commentary and explanation. The Model Penal Code — and supporting commentary — specifically prohibit use of force in resisting an arrest, even if that arrest is believed to be illegal.[vi]
The preference under the modern implementation of the law is for judicial resolution regarding the legality of the arrest. The law generally disfavors self-help, particularly when force is involved. While an arrest outside the home is different from police entry of a home to search or arrest, the underlying legal principles are unchanged with respect to judicial resolution of the legality of police conduct as opposed to direct action by the citizen.
The Indiana “right to resist” legislation contains language similar to the Florida “stand your ground” rule presently at the center of Trayvon Martin’s death. Both statutes rely on the language of “reasonable belief” which is an accepted legal standard. However, in the context of self-defense the reasonableness of the belief becomes an essential element of the defense which may be hard to overcome. This is also a legal concept which the layperson may not adequately grasp — many lawyers and legal scholars disagree over the concept.
While reasonableness is meant to be an objective consideration, there have been differing court interpretations over this standard and the extent to which subjective belief is relevant. Indiana law enforcement authorities point to issues such as this as well as the fact that most people will just hear the words “right to resist” and assume they can defy the police. There exist a number of problems with the Indiana law and police departments within the state will have to address the new legislation and officer response in light of this potentially-dangerous situation the political class has created for law enforcement. The Indiana law enforcement community’s concerns have been given credence with the Florida case. A young man lost his life because of what may be one citizen’s misplaced reasonable belief and a police agency’s acquiescence in that belief.
The facts of the Martin case are still being unraveled but the focus and attention the case has garnered can serve as a lesson in the inherent dangers of Indiana’s “right to resist” law. We do not need to be mourning a police officer’s death in Indiana due to similar events.
[i] Hemmens, C. (2000). Resisting Unlawful Arrest in Mississippi: Resisting the Modern Trend. California Criminal Law Review, 1-33
[iii] 177 U.S. 529 (1900)
[iv] United States v. Di Re, 332 U.S. 581 (1948)
[v] See eg., Miller v. State, 469 P.2d 421 (Ak., 1969); People v. White, 161 Cal. Rptr., 541 (Ct. App., 1980); Diehl v. State, 294 Md. 466 ( 1982); Commonwealth v. French, 611 A.2d 175 (Pa., 1992)
[vi] American Law Institute. (1985). Model Penal Code and Commentaries. Philadelphia: American Law Institute. Section 3.04, p. 30-31.