Barnes v. State

summary grant who the trial court’s of differently residents affirm City treated in favor of the homeowners. judgment lump in a pay their assessments elected pay in those who elected sum versus

installments. DICKSON, J., concurs. multiple the City

To be sure advanced the differen-

post-hoc rationalizations for But do arguments

tial treatment.1 such the failure the Resolution to

not obviate of scrutiny rational basis on the reason-

pass forth in its text.

ing set Leaf, not a case like This is Clover BARNES, Appellant L. Richard plastic between where the classification (Defendant below), equal milk non-plastic cartons satisfied evi- protection concerns and there was rationally legislature

dence the believed Indiana, Appellee of STATE (Plaintiff below). the stated the classification would further waste, objective reducing despite of solid No. 82S05-1007-CR-343. contrary. See empirical evidence the 463-64, 469, Leaf, U.S. at Clover Supreme Indiana. Court of Here, 716. there is no indication S.Ct. May 2011. even that the Board believed the classifica- objective. further tion would its stated in purpose 101 sim-

The stated Resolution

ply express any fails to connection to the

distinction between who elected residents pay lump their in a sum assessments pay

and those who elected to install- my view

ments. this disconnect demon-

strates that the fails to have classification fair and

“a substantial relation” to Stores,

statutory objective. See Allied 527, 79

U.S. at S.Ct. 437. I therefore

agree with the Court would Appeals considered, meeting why The Public Works min-

1. Committee could be addresses reimbursed, Homeowners not were not ap- utes the cites at footnote 10 do why Resolution chosen classifi- made the pear reasoning director to contain of the Further, reasoning merely it is cation. Department of Public Works for Department Public the Director of homeowners, reimbursing essentially be- given ques- to a citizen’s Works providing "simply cause refunds would be reason- tion. There is no indication that such impossible.” Supra Meeting Committee Min- adopted by in Resolution Board Op. utes at as cited in at 562 n. 10. This In addition the of these 101. fact that most adoption was made statement before during were the course rationales advanced Resolution, but I am not convinced this litigation, nearly a half this two and reasoning may conjunction be read years passed, renders after the Resolution was my purpose. suspect Even if it Resolution’s stated them view. violence in went out as a “domestic patch progress.” Reed, responder, Lenny the first Officer leaving apartment saw a man him in the began questioning bag and identifying the man as Upon lot. parking Barnes, him that officers Reed informed a 91Í call. Barnes responding were Evansville, IN, Attor- Berger, Erin L. getting things he was responded that ney Appellant. for Reed was not needed. leaving and and that Zoeller, Attorney F. General Gregory yelled his voice and at Barnes had raised Indiana, Deputy At- Scharnberg, Karl M. Reed, stares from others out- prompting IN, General, Indianapolis, Attor- torney warnings from Reed. side and several neys Appellee. for Henry arrived on the Officer Jason “very that Barnes was

scene and observed yelling.” Barnes “contin- agitated and was yell, loudly” and did not lower his ued to until Reed warned that he would be voice disorderly conduct. Barnes arrested for DAVID, Justice. retorted, Disorderly you up “if lock me for jury convicted Richard Barnes A Conduct, sitting you’re going right to be battery on a law A misdemeanor Class Mary came onto jail next to me in a cell.” officer, A misdemeanor enforcement Class lot, bag a black duffle parking threw enforcement, B and Class resisting law direction, told him to take the Barnes’s Barnes disorderly conduct. misdemeanor stuff, apart- of his and returned to the rest the trial court’s failure contests Henry ment. followed Barnes Reed jury reasonably advise the on Mary apartment. back to the entered entry by police unlawful officers con- resist Barnes, who then apartment, followed that the evi- stituted reversible error and doorway. turned and blocked the around to sustain his con- dence was insufficient they could not Barnes told the officers no victions. We hold that there is and denied Reed’s apartment enter the reasonably entry by police investigate. Mary requests to enter and further hold that the evi- officers. We in, invite the officers but explicitly did not dence was sufficient and affirm Barnes’s times, “don’t do she told Barnes several convictions. “just let them in.” Reed at- this” and History Facts and Procedural apartment, to enter tempted A against him the wall. Barnes shoved 18, 2007, Richard Barnes On November ensued, and the officers used struggle Mary Barnes as he argued with his wife a taser to subdue and choke hold and Dur- moving apartment. out of their Barnes. Barnes suffered ad- Mary tried to call her argument, was taken verse reaction to the taser and grabbed phone from sister but Barnes hospital. wall. against her hand and threw it A charged with Class misde- Mary phone called 911 from her cell officer, battery on a Class dispatcher that Barnes was meanor informed enforcement, resisting law throwing things apartment around the but misdemeanor conduct, B misdemeanor that he had not struck her. The 911 dis- Class A misdemeanor interference court’s refusal to and Class Barnes’s tendered Before the instruction was not error. reporting with the crime. trial, a jury Barnes tendered instruction on English The common-law to resist of a citizen to resist action existed for over into the citizen’s home.1 years, three hundred and some scholars

The trial court refused Barnes’s instruc- origin trace its to the Magna Carta in tion and did not otherwise instruct Levin, Craig 1215. Hemmens & Daniel jury as to the resist. a Law “Not at All”: A Call the Return guilty battery jury found Barnes on to the Law Right Common to Resist Un- officer, enforcement, resisting law Arrest, (1999). 1, 29 Sw. U.L.Rev. 9 lawful disorderly and conduct. The Supreme United States recog- Court right nized this in Bad Elk v. United challenging the trial appealed, States, 529, 535, 729, 177 U.S. 20 S.Ct. 44 jury court’s refusal to his tendered (1900): L.Ed. 874 “If the officer had no sufficiency and the of the evi instruction arrest, right to the other party might re- supporting dence his convictions. The illegal him, sist the attempt to arrest using Appeals of found that the trial Court no more force than absolutely neces- jury court’s refusal of Barnes’s tendered sary repel constituting assault not instruction was harmless error. attempt to arrest.” The Supreme Court (Ind. Barnes v. has right recently affirmed this as as 1948. Ct.App.2010). Appeals The of also Court Re, 581, 594, United States v. Di 332 U.S. found that the evidence was insufficient to (1948) (“One 68 S.Ct. 92 L.Ed. 210 has sustain the conduct conviction. right undoubted to resist an unlawful Id. at 426-29. The of Appeals Court arrest, and courts will uphold right trial therefore ordered a new on the bat cases.”). in proper resistance tery resisting charges. Id. at 429. 1920s, In legal scholarship began granted We transfer. criticizing right valuing as individual Jury I. Instruction liberty physical security over of the offi Barnes contests that his tendered Levin, cers. supra, Hemmens & at 18. jury given instruction should have been One scholar noted that the common-law because it was a correct statement of a came from a time where “resistance legal supported by viable defense the facts by peace arrest officer did not and because that defense was not covered dangers today.” involve the serious it does by the other instructions. We acknowl Warner, Act, Sam B. The Arrest Uniform edge Appeals that the Court of followed its (1942). L.Rev. Va. The Model precedents analysis. own in its Now this Penal Code eliminated the on two “(1) is faced for Court the first time with the grounds: development of alternate question of whether Indiana should recog arrestee, remedies for an aggrieved (2) nize the common-law the use of force the arrestee was entry by likely officers. greater injury to result public policy conclude that person We disfavors preventing without the arrest.” any Levin, such right. Accordingly, the trial Hemmens & supra, at 23. In re- force, 1. Barnes's tendered instruction is as follows: cessive and the arrest cannot be con- Therefore, peaceable. sidered a citizen has attempted by When an arrest is means of a forceful and unlawful into a citizen’s resist the unlawful home, entry represents entry. such the use of ex- remedies). cedure, We also criticism, civil to this sponse unnecessarily allowing find that resistance via statutes abolished the states have and there- the level of violence in the escalates judicial opinions in the 1940s and in- injuries parties risk of to all fore the Id. at 24-25. 1960s. the arrest —as preventing without volved addressed this Appeals instant case. by the facts this evident State, 472 N.E.2d issue Casselman (“But Hobson, at 836 E.g., 577 N.W.2d Cassel- (Ind.Ct.App.1985). ripe often situations that are at a man, appear the defendant did escalation, rapid one’s ‘measured’ the advice of his proceeding on judgment excessive.”). Further, may fast become the sheriffs Id. at 1311. When attorney. necessary for we note that a warrant is not to effect a civil went to his home deputy example, into a home. For every attempted to close the defendant are in they enter the home if officers face. brief deputy’s the door or if pursuit” “hot arrestee ensued, and the defendant struggle entry. E.g., justified the circumstances into his house. when he retreated arrested Santana, 38, 42- States v. 427 U.S. United Appeals Id. at 1311-12. Court (1976) 43, 2406, 49 L.Ed.2d 300 96 S.Ct. lawfully deputy found that the “was that retreat into a defendant’s (holding process” in the execution of civil engaged prop- thwart an otherwise house could not from the defendant prevented when he in of a “hot er arrest made the course home. Id. at 1314. closing the door to his State, N.E.2d Holder v. 847 pursuit”); Appeals the acknowl Although (“Possible (Ind.2006) imminent de- 938 common- edged abolishing the trend of the exigent one cir- struction of evidence is an unlawful right law to resist may justify a warrantless cumstance ex ultimately heightened focused on the if the fear on the entry part into a home privacy in one’s home and pectation that the evidence was immedi- police the an unlawful right a to resist recognized destroyed objectively to be is ately about officer. Id. entry police into a home a reasonable.”). warrant, with a offi- Even at 1315-18. faith in enter- good cers have acted right believe however that a to resist We home, later that then- a to find ing entry police an unlawful into a home is v. Ev- E.g., error. Arizona incompatible and is against public policy ans, 1, 11, 115 S.Ct. U.S. jurispru- with modern Fourth Amendment Leon, (1994); States v. L.Ed.2d United Nowadays, aggrieved arrestee dence. 897, 922-25, 3405, 82 104 S.Ct. 468 U.S. has means unavailable at common law for (1984). situations, In these L.Ed.2d 677 against police unlawful action. redress a to find it unwise to allow homeowner we Warner, (citing at E.g., supra, legality police conduct adjudge dangers of arrest at common law—indefi- to the heat of the moment. As we decline detention, bail, lack of disease-infested nite police recognize to resist physical torture —as reasons for prisons, home, recognize we decline to entry into resist); recognizing State part officer as a to batter a Hobson, 218 Wis.2d 577 N.W.2d of that resistance. (1998) (citing following 835-36 modern (1) (2) Here, bail, the trial court’s failure to arraign- developments: prompt cause, jury instruction was not proffered probable ment and determination of (4) (3) rule, recognize error. Because we decline exclusionary police depart- resist an disciplinary pro- internal ment review legali- entry, we need not decide dence could have allowed a reasonable tri officers’ into Barnes’s er of fact to find the ty guilty of the defendant note, however, beyond a reasonable doubt.” Tobar v. apartment. We (Ind.2000). 109, 112 investigating were a “domestic vio- officers to a 911 progress” response lence in call. Disorderly A. Conduct generally emergency A 911 call details or po- swift requiring prove circumstances To that Barnes committed cases, conduct, lice action. In these the officers are B disorderly Class misdemeanor responding rapidly changing prove or escalat- the State needed to that Barnes events, recklessly, knowingly, and their initial intentionally is made unreasonable noise and often based on limited information. The continued to do so after being stop. asked to properly officers cannot Ind.Code assess com- 35-45-l-3(a)(2) (2004). § Because one’s plaint dangers and the to those threatened expression conduct or may be free speech without some limited access to the involved Constitution, protected under the Indiana It parties. expect is unrealistic to officers an application conduct to wait for threats escalate and for pass statute must constitutional scrutiny. imminent violence to become before inter- employ We a two-step inquiry in reviewing Here, vening. the officers acted reason- the constitutionality of an application of ably totality under of the circum- the disorderly conduct statute: we “de stances. termine whether state action has restrict sum, we hold that Indiana the expressive ed a claimant’s activity” and police to resist an unlawful en- “decide whether activity the restricted try longer recognized into a home is no constituted an ‘abuse’ of the to Indiana law. the Accordingly, under trial State, speak.” Whittington v. 669 N.E.2d proffered court’s failure to Barnes’s (Ind.1996). 1367 prong The first jury instruction on this was not er- may be solely police satisfied based on the ror. restricting a speaking claimant’s loud dur Sufficiency II. of Evidence ing investigation. Id. at 1370. sufficiency Barnes the challenges prong hinges The second on whether the of the evidence to support his conviction expression restricted political constituted battery for Class A misdemeanor on a speech. Id. at 1369-70. If the claimant officer, Class A misdemeanor resist objective demonstrates under an standard enforcement, law B and Class misde the impaired expression political that was disorderly meanor conduct. The standard speech, the impairment is unconstitutional sufficiency-of-evidence of review for claims unless the State demonstrates that the well reweigh is settled. We neither the “magnitude of the impairment” slight is or judge credibility evidence nor of the speech that the public amounted to a nui witnesses, respect jury’s and we “the ex sance such that it ‘particular “inflictfed] province weigh conflicting clusive to evi analogous ized injury harm’ to tortious on State, dence.” Alkhalidi v. 753 N.E.2d readily private identifiable interests.” Id. (Ind.2001). State, 627 We “consider (quoting Price v. 622 N.E.2d (Ind.1993)). probative evidence and reasonable infer expression, If the viewed ences supporting McHenry context, verdict.” ambiguous, is political is not (Ind.2005). speech, and we evaluate the constitutional “if probative ity impairment We affirm the evidence and under standard ra Here, tionality reasonable inferences drawn from the evi review. Id. at 1370. officer, needed to enforcement the State argues speech i.e., that his Barnes — investigating threats at and to yelling or in knowingly that Barnes demonstrate political protected officers—constituted rude, touched in a tentionally the officer speech. insolent, angry or manner while the officer issue in a official analogous engaged in the execution of his

We resolved was State, 859 N.E.2d 35-42-2-l(a)(l)(B). case in J.D. v. juvenile § The duty. I.C. (Ind.2007). J.D., officer investi- argues that Barnes battered Officer State juvenile complaint against gating “shoving a door.” Reed him into solu- peaceable her to find a approached dispute evidence es Barnes does tion, an arrest as “the last resort.” with Reed, he tablishing that who was shoved juvenile loudly interrupted Id. at 343. call, Mary’s he ar responding but attempts to her speak the officer’s re that his conduct was a lawful gues requests “stop holler- respond did not to Reed’s sponse allegedly Id. After she was threatened ing.” apartment. into his Because we decline arrest, speak she continued to over a homeowner to recognize juvenile and was Id. The officer arrested. entry, Barnes is sufficiency of the evidence challenged Reed, batter irrespective not entitled to as adjudication the trial court’s supporting legality entry. of Reed’s delinquency commission of conduct, arguing pro- that her conduct speech. Id. at 343-44. We political

tected Resisting C. Arrest that of distinguished facts of J.D. with prove To that Barnes committed Price, loudly objected where the defendant resisting person to the arrest of another the State needed Class pro- officers’ threats to her for her knowingly or to demonstrate Price, Id. at 344. We test. found resisted, obstructed, forcibly intentionally speech “the defendant’s did not obstruct with a offi or interfered law enforcement ju- police,” interfere with the whereas the lawfully engaged the officer cer while alleged political speech venile’s J.D. § execution of 35- his duties. I.C. hampered ability perform the officer’s to 44-3-3(a). The argues State that law enforcement Id. be- his duties. We with the struggled officers and resisted are present lieve the facts of the case attempt battering to him for their arrest speech the facts in closer to J.D. Barnes’s before, dispute Reed. As Barnes does not case is a of present person in the that of struggle his with officers but contests a refusing cooperate police interest to conduct was lawful his a and is contours investigation not within the allegedly entry into the officers’ political speech contemplated by of Price. not en apartment. his Because Barnes is assuming polit- Even Barnes’s conduct officers, his titled to resist speech, “magnitude impairment” ical of battery grounds on Reed sufficient yell- minimis. Barnes’s Accordingly, is de fact his and uncontroverted officers, they at the warned even after down, that he resisted arrest was sufficient to him to calm to sustain was sufficient disorderly conduct his conviction. his conviction. sustain Battery B. on a Law Of- Enforcement Conclusion ficer Barnes’s conviction and sentence are af- prove

To that Barnes committed a law battery A misdemeanor on firmed. Class SULLIVAN,

SHEPARD, C.J., J., appropriate for the facts presented and principles concur. more consistent with judicial restraint. Such a more cautious revision DICKSON, separate J. dissents with a have, of the common law would cases opinion. violence, involving domestic left RUCKER, separate J. dissents with a place the historic right people to reason- DICKSON, in which J. concurs. opinion ably resist unlawful police entry into their dwellings. DICKSON, Justice, dissenting. Acknowledging the historic common-law RUCKER, Justice, dissenting. officers, by police majority tethers its respectable has made a (a) abrogation of this on modern case supporting the proposition that developments that have diminished the common law rule entitling person at dangers (e.g., arrest common law an resist unlawful arrest is outmoded in detention, bail, indefinite lack of disease- society. our modern proposition But this (b) torture), prisons, infested physical is not new. The of Appeals reached desire to minimize the risk of the level of the same conclusion over three decades (c) injuries,

violence and risk of ago. private “[A] citizen not use rights of police enter home even with- in resisting peaceful force out a warrant under certain circum- knows, individual who he or has reason to stances. But the consistent existence of know, is a performing officer many and adherence to of these factors regardless duties whether the arrest in unfortunately remains less than ideal. question is Williams lawful unlawful.” alleging Courts continue to see claims ex- State, v. 160 Ind.App. 311 N.E.2d detention, preliminary cessive failure to added). (emphasis product bail, promptly set and excessive use of law, the English permit common the rule by police. force ting resistance to unlawful arrest was view, In my abrogation the wholesale of based on the premise everyone should person privileged historic of a be to use reasonable force to police entry prevent resist into his dwell- physi unlawful invasion of his ing is unnecessarily integrity personal unwarranted and cal liberty. Fields broad. The case before us involves 178 Ind.App. (1978). in response report

action to a of domestic 975-76 during And the rule arose progress. violence in Such present self-help events a time when awas more neces heightened urgency police presence sary a for remedy to resist upon intrusions one’s protection dwelling’s for the occu- freedom. As the explained, Fields court pants enraged and to diffuse emotions and developed largely during period a “[it] animosity. It preferable, would have been when most arrests were private made view, citizens, in my today for the Court to have when usually bail for felonies was unattainable, taken a more narrow approach, construing years and when might pass police entry, royal to resist unlawful judges jail before arrived for a which extends delivery.” reasonable resis- Id. at B. (quoting Sam tance, Warner, by deeming Act, person’s unreasonable a Arrest 28 Va. Uniform (1942)). However, police entry resistance to in the course of L.Rev. “[t]he investigating reports of domestic violence. common law of forceful resistance to Such a formulation would have been more an unlawful promote tends to vio- it; the storm may through wind blow of some- the chances lence and increases enter; Id. at 975. enter; may or killed.” but the getting injured the rain one majority Thus, the reasons the largely for enter —all King England cannot underlying considerations explains the threshold of not cross the force dares longer applica- arrest are no right to resist the ruined tenement! or, century for that twenty-first ble for The same is no 78 S.Ct. 1190. Id. at matter, century. the twentieth today applies equally true less a supporting law rule But the common the State. forces of entry into citizen’s to resist ground, different very rests on a her home not whether in this case is At issue Fourth Amendment namely, the had the to resist Indeed, “the States Constitution. United proposition entry into his home—a chief evil entry of the home is the physical contest —but the State does not even that wording of the Fourth against which the entry illegal in the rather whether the v. New Payton is directed.” Amendment so, if whether and to what place, first York, 573, 585, 100 445 U.S. S.Ct. without could resist extent Barnes (1980). it is my In view L.Ed.2d 639 battery upon the officer. committing breathtaking majority deems jurisprudence Fourth Amendment Federal necessary to erode appropriate or even these resolving the task of equal is based on protection this constitutional sweeps my view the issues.2 In policy different addressing rationale much by essentially with far broad a brush too simply There is no reason considerations. government telling Indiana citizens common law abrogate illegal- their homes agents may now enter citizen to resist the unlawful is, necessity of a war- ly without —that her home. into his or consent, rant, circumstances. or States, In 357 U.S. Miller United to seek remedy their sole is And that 313-14, 1190, 2 L.Ed.2d 1332 S.Ct. disagree and in the civil arena. I refuge Supreme the United States Court respectfully therefore dissent. to arrest held that it was unlawful when a war- charges defendant on criminal DICKSON, J., concurs. by police

rantless arrest was conducted breaking entering the defen- officers expressly without an- apartment

dant’s presence of their

nouncing purpose recounting the

demanding admission. holding its perspective

historical century remarks quoted eighteenth Pitt, Earl of

attributed William Chat-

ham, of a in Parlia- on the occasion debate

ment: may cottage man in his bid poorest

defiance to all the forces of the Crown. shake; frail; may

It be its roof a search argument justifying into a home without respectable could be 2. Indeed a police response report made that of do- warrant. violence is an circumstance mestic

Case Details

Case Name: Barnes v. State

Court Name: Indiana Supreme Court

Date Published: May 12, 2011

Citation: 946 N.E.2d 572

Docket Number: 82S05-1007-CR-343

Court Abbreviation: Ind.