In March 2012, the Indiana Legislature enacted a law that makes it legal under certain circumstances for a citizen to use deadly force against a law enforcement officer who “unlawfully” enters the citizen’s home, curtilage, or motor vehicle. The law involves Indiana’s Castle Doctrine.
The Castle Doctrine is part of the American common law derived from the English system. Under English law, a man’s home was his castle. In the home, under British rule and in present-day America, individual rights are at their highest: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”
As the U.S. Supreme Court has reiterated (See Payton v. New York, 445 U.S. 573, 585 (1980)), “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”
No Duty to Retreat
A person has no duty to retreat in his or her home before using force, up to and including deadly force, in self-defense. The Castle Doctrine sets up both a defense against criminal prosecution and civil immunity from liability for the use of force against an intruder in the home. The justification for the use of force — and the prerequisite for the successful assertion of a successful self-defense or civil immunity claim — is generally an unlawful entry into the home accompanied by a reasonable belief that the intruder has committed or will commit a crime in the dwelling.
Indiana has had a statutory codification of the Castle Doctrine in place since 2006 (Indiana Code (IC) 35-41-3-2). The Legislature changed the law substantially in 2012. A full appreciation of the action the Legislature took on this law is not possible without an understanding of the court case that gave rise to it.
In 2007, police arrested defendant Richard Barnes after responding to his wife’s 911 “domestic violence in progress” call at his home.
After yelling at and threatening the police, Barnes became physical — shoving one officer who attempted to enter his apartment — which necessitated the use of a TASER to subdue him and resulted in charges of battery on a law enforcement officer, resisting law enforcement, and disorderly conduct.
At trial, Barnes contended that he had the right to challenge police officers who entered his home, because their entry was “unjustified,” and he sought an instruction to the jury that he had the right to reasonably resist an unlawful entry into his home. The trial court disagreed, and the jury convicted Barnes of all charges.
On appeal the Indiana Supreme Court framed the issue and its conclusion as follows:
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.
[W]e 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 part of that resistance.
Barnes v. State of Indiana (Barnes I)
The Court noted that the Model Penal Code had eliminated the common-law right to resist an unlawful arrest due to alternative (i.e., monetary) remedies for those arrested and the increased risks of greater injury for all involved, the unnecessary escalation of violence, and the fact that a warrant is not required for every entry into the home to make it lawful (for example, domestic violence 911 calls). Significantly, at no time in the trial or appellate process did any court agree with Barnes’ assertion that the police in his case violated any state or federal law when they entered his home or that his arrest was in any way unlawful.
Defendant Barnes, the state Attorney General, and members of the Indiana General Assembly petitioned for rehearing of the Court’s May 12, 2011 decision, seeking clarification as to whether the Court’s ruling applied to both the common law right to resist unlawful entry (as stated by the Court) and the Castle Doctrine (as codified at IC 35-41-3-2, but not asserted by Barnes).
On September 20, 2011, the Court issued its opinion on rehearing, affirming that its decision applied to both the common law and the Castle Doctrine in Barnes v. State of Indiana (Barnes II). In its decision, the Court stated that it was bringing the state’s common law in line with jurisdictions promoting safety in interactions between police and homeowners.
In response to Barnes II, the Legislature voted to amend the Indiana Code effective March 20, 2012 (see Sidebar). The amendment to Indiana self-defense law permits citizens to use force against unlawful intrusion into their homes, curtilage, or occupied motor vehicles by any person, including public servants. This law altered the landscape of the Castle Doctrine by extending legal protection to those who would use force against the police.
There appears to be a dearth of support in the legislative record such as documented police abuses (See Final Report of the Legislative Council Barnes v. State Subcommittee, November 2011, for a summary of testimony taken by the subcommittee). The draft of the legislation that emerged from the final subcommittee report was much more favorable to law enforcement than the version that was approved. Additionally, the fact pattern in the Barnes case is not sympathetic to the defendant and seems to weigh in favor of the police. The legislative fix seems to be a solution in search of a judicial problem.
As recognized in Barnes I, it is certainly the prerogative of the Indiana General Assembly to create statutory defense to the offenses it criminalizes. Further, lawmakers are free to disagree with judges on matters of public policy. However, interpretation of the laws created by the legislature is the province of the courts, and one of the legislators’ principal arguments in its amicus briefs to the Court was that Barnes was inconsistent with Indiana’s self-defense statute. In Barnes, the Indiana Legislature selected a very poor vehicle to extend the laudable notion of self-defense of one’s home to a legal assault on law enforcement officers, shifting the burden from the homeowner to the police.
If the new use of force code provisions had been applied, would the jury and the Indiana Supreme Court have reached a different result? If Barnes had been permitted to assert a defense that the police had unlawfully entered his home, such a claim could easily have been defeated by evidence that the police had received a 911 call from his wife and were checking on her welfare. Is the availability of such a defense worth the risk of escalation of violence in already volatile situations in which the police must make split-second decisions as to the use of force?
Ultimately, the implications of this extension of use of force to “castle defenders” in the modern era will likely result in more violence exercised by people with less training and the further erosion of respect for the authority of our institutions, officers, courts, and the rule of law.