Proposed Indiana Castle Doctrine Allows for Killing Police Officers

Updated 3/23/2012:  It was signed into law by Gov. Daniels.

Updated 3/9/2012:  SB 1 was passed by the Senate and the House and will be sent to Indiana Governor Mitch Daniels.  See the end of the article for further.

If you have not been following the legal machinations in the State of Indiana over Castle Doctrine, you need to read the appalling proposed “legislation” that is Indiana Senate Bill 1 (SB 1) 2012.  This bill passed the Indiana House 74-24 in a vote last week and was returned to the Indiana Senate with amendments.

Sections (h)(i),(j), SB-1 from the Indiana General Assembly:

(h) A person is justified in using reasonable force against any law enforcement officer if the person reasonably believes the force is necessary to:
(1) protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force;
(2) prevent or terminate the law enforcement officer’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle; or
(3) prevent or terminate the law enforcement officer’s unlawful trespass on or criminal interference with property lawfully in the person’s possession, lawfully in possession of a member of the person’s immediate family, or belonging to a person whose property the person has authority to protect.
(i) Notwithstanding subsection (h), a person is not justified in using force against a law enforcement officer if:
(1) the person is committing or is escaping after the commission of a crime;
(2) the person provokes action by the law enforcement officer with intent to cause bodily injury to the law enforcement officer;
(3) the person has entered into combat with the law enforcement officer or is the initial aggressor, unless the person withdraws from the encounter and communicates to the law enforcement officer the intent to do so and the law enforcement officer nevertheless continues or threatens to continue unlawful action: or
(4) the person reasonably believes the law enforcement officer is:
(A) acting lawfully, or
(B) engaged in the lawful execution of the law enforcement officer’s official duties.
(j) A person is not justified in using deadly force against a law enforcement officer who the person knows or reasonably should know is a law enforcement officer unless:
(1) the person reasonably believes that the law enforcement officer is:
(A) acting unlawfully; or
(B) not engaged in the execution of the officer’s official duties; and
(2) the force is reasonably necessary to prevent serious bodily injury to the person or a third person.

I urge you to read the full SB 1 with amendments.  This legislation is allegedly in response to the lawsuit in Richard L. Barnes vs. State of Indiana, Indiana Supreme Court (Case No. 82S05-1007-CR-343), May 2011.

On November 17, 2007, officers in Evansville, IN responded to a reported domestic violence call at Barnes’ apartment. He became belligerent with officers in the parking lot.  When Barnes went to retrieve his belongings from the apartment, he refused officers entry, though his girlfriend inside said to Barnes to “just let them in.”  Barnes shoved one of the officers into a wall.   He subsequently fought with police and was Tasered and arrested.

Barnes was later convicted of misdemeanor battery on a police officer, misdemeanor resisting law enforcement, and misdemeanor disorderly conduct.  Upon appeal, all three convictions were upheld by the Indiana Supreme Court.

The Indiana Supreme Court ruling in Barnes vs. Indiana spoke to an element of Barnes’ argument, which was whether the police had the right to enter his home.  The Court said the police were legally allowed to enter his home based on the totality of the circumstances.

Despite upholding the legality of the police entry, and to speak to Barnes’ appeal, the Indiana Supreme Court said, “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.”  Further, “We hold that there is no right to reasonably resist unlawful entry by police officers.”

As a knee-jerk reaction to this, SB 1 was proposed by Republican senators to ostensibly protect citizens and the police against illegal police behavior.  The result is an open season on cops.  In reading SB 1’s language, I cannot articulate all the new hazardous scenarios that would face Indiana law enforcement officers.

Indiana Code IC 35-41-3-2 already addresses the lawful use of force and deadly force in general law and as Castle Doctrine.  SB 1, however, specifically and unnecessarily targets law enforcement.

When the police act illegally, the accused has a right to grieve the behavior and outcome through the legal system.  Under this legislation, the accused’s recourse of action can instantly escalate up to firing bullets at the police, especially since there is no legal requirement to retreat in Indiana.  The subjective standard of “reasonably believes” becomes probable cause for a home or property owner to use deadly force on officers.

Because this bill is currently pending in the Senate, I urge all law enforcement officers to contact their Indiana brothers and sisters and advise them to immediately petition their legislators and unions to vigorously fight the wording of SB 1 as if their lives depend on it.  Because they do.

Update:  On Friday, 3/9/2012, the Indiana Senate passed SB 1 with a vote of 38-12 in favor.  The Indiana House followed suit and passed the bill 67-26.  It is now in the governor’s hands. The Fraternal Order of Police lobbied against this legislation.  Said Chuck Canterbury, National President of the FOP, “Your average citizen does not have the requisite legal training or training in police procedure to make an informed decision about whether or not the law enforcement officer is making a lawful entry.  What this bill will do is turn every situation where an officer has to enter someone’s property into a potentially lethal misunderstanding. It’s just flat out dangerous.”

Randall

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17 Responses to Proposed Indiana Castle Doctrine Allows for Killing Police Officers

  1. Randall I am a huge fan but the title “Proposed Indiana Castle Doctrine Allows for Killing Police Officers” is a little strong.

    This change would be applicable if the LEO was doing something illegal and would still be held to the “reasonable man standard.”

    What this doe do however, is make it possible for a homeowner to resist a home invasion or sexual assault of a criminal dressed as a police officer.

    • Randall says:

      Hi, Ron. And I am a loyal reader of When the Balloon Goes Up!

      I guess I don’t think the title is quite so strong in light of the reckless language of SB 1. Indiana law has Castle Doctrine and Stand Your Ground, where you are already legally allowed to protect yourself from anyone who threatens your home or family, including your examples above. It makes SB 1 wholly unnecessary. It was an improper response to a case that would not have even been covered under the proposed law, because Barnes was a DV call. If the Indiana Supreme Court ruling in Barnes articulated a breach of the Fourth Amendment, as has been argued, then the venue for change would be in the U.S. Supreme Court, not unconsidered state legislation.

      SB 1 will give violent sociopaths, sovereign-esque citizens, and criminals a legally worded justification to use force on the police, regardless of the later results in court. In turn, to protect themselves, officers will have to treat every lawfully-obtained search warrant or exigency as a “high risk” entry. I would. In my opinion, there was no reason to enumerate a list of circumstances in which you may use force and deadly force against law enforcement officers, when the citizens’ rights and protections were always there.

      Randall

      • Randall,

        In every locale I am aware of, citizens are at legal risk if they stand up to a police officer in anyway. In a he said she said situation the courts have proven that they side with the police officers. The best a law abiding citizen can hope to do is to file a complaint with the department after the fact.

        This puts a law abiding citizen in a very tough place if they are the victim of a crime where the perpetrator is dressed as a police officer (regardless if they are one or not). This could be a home invasion or traffic stop on a dark country road.

        The force is limited to “reasonable” force AND it is only a defense if the officer is doing something “unlawful.”

        This is a very high standard to overcome for to justify the killing of a police officer, and if it is justifiable the officer is acting as a criminal at the time so their occupation is moot.

        As for Dennis’s comment… It is an affirmative defense! Which requires the accused to say “Yes, I did it and I was justified” they also have to take on the burden of proof. If they can’t not meet that burden they have admitted guilt and will be sentenced accordingly.

        Lastly, if they are using the statute to attempt to justify the murder of a police officer, they are criminals and by definition they are willing to break any law that is put in place.

        I consistently make a point on my blog that police officers are citizens. They are subject to the same laws as anyone else. This law just acknowledges that if a police officer is committing a crime a “private citizen” can stop it from happening against an armed and trained aggressor.

        If a LEO is legally entering private property to arrest violators, protect citizens, seize evidence, recover items this law has no effect.

        • Michael says:

          The point is not whether the law is reasonable. It is. It is in line with legal precedent for hundreds of years.

          However, the issue is that an irrational person, such as a sovereign citizen, could read this entirely the wrong way. It’s not that this law will declare open season on police officers, just that it will make people who already have a tenuous grasp on reality more likely to act on their fears. Sovereign citizens are already well known for this type of thinking. The whole movement is based on a misreading of various laws to try to assert a conspiracy based on admiralty law. Here we have another law that could be twisted in another scary way.

          That’s kind of a silly and dangerous thing to put out there when it is completely unneccesary. Like I said, this has been common law forever.

  2. Dennis Slocumb says:

    In the first place, the law was NOT necessary. Police officers are not to be compared with private citizens. LEO’s are permitted and required to enter private property to arrest violators, protect citizens, seize evidence, recover itens and a myriad of other reasons. Ordinary citizens are not so authorized. This law also provides an affirmative defence for someone who is accused of assaulting an officer on priovate property. It should be vetoed.

  3. Randall says:

    Ron,

    I understand your points. I am not addressing the law-abiding citizen’s perspective. From professional experience, I know how this bill will be interpreted by the fringe. I agree, the actual law should have no effect on the police officer who is operating on sound legal territory. It will affect that same police officer when he knocks on the doors of the people who have a more “creative” interpretation of our laws than either of us.

    Dennis,

    I think the affirmative defense will cause people to act because they will believe they are justified. That makes it a dangerous proposition for all involved.

    Randall

  4. Richard says:

    When I was still working in Georgia, we had a law that allowed citizens to use force to resist an unlawful arrest. That was drilled into us at the academy – that the state fully recognized that citizens had the right to be free of unlawful government action. It was also something I drilled into recruits during FTO.

    We never seemed to have any problems.

  5. Randall says:

    SB 1 sent to the governor. Article updated 3/9/12.

  6. Rick says:

    It would make much more sense to eliminate no knock entries. Seems to me the intent of the law is to protect the law abiding citizen from prosecution when human error brings the swat team to the wrong address at 4 am.

    • Randall says:

      Rick, thanks for weighing in…

      I can only really address my Tactical Team, but a no-knock situation is very, very rare because of the heightened danger to citizens and law enforcement. It is only used when the strongest probable cause exists that an announced entry will elicit gunfire or ignition of a destructive device. But I will add that my team has never “hit the wrong house” in nearly 35 years of operations, to include (conservatively) over 600 high risk search warrant services. We are cautious.

      Randall

  7. Geoff says:

    Good for Indiana in passing this law. It separates the real cops from the criminals with badges.

  8. Robert says:

    The post from Richard was unexpected and honestly a surprise.

    Would like to see a few LEO’s from Indiana post how their department is approaching this? In my home state I can see that planning vary wildly from rural and city locations.

  9. DealerOfJustice says:

    Okay so what you’re saying is, cops should hvae the right to commit illegal acts and should be able to without fear of death like that of regular civilians and that cops have the right to feel like they are above regular civilians?

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