Attacking Liberty, Indiana Supreme Court Overlooks Patriot Act

Jim Crum, one of my Chicago correspondents and a blogger on American Thinker, forwarded me Barnes v. State of Indiana,  a case that was decided in Indiana's Supreme Court, the state's highest court.  In tandem with the Democratic Party-dominated Senate's decision to renew the Patriot Act, the case illustrates the American judiciary's indifference to liberty and its cooperation with the Bush-Obama administration's totalitarian agenda.  The American court system needs to be reconstituted.  States' rights need to be renewed and the US Supreme Court eliminated.  The courts are not the friend of freedom or of the American people.

The facts of the Barnes case come out of a Law and Order episode.  In November 2007 Barnes had gotten into an argument with his wife, Mary, and she called the police, telling them that Barnes had thrown things but there had been no violence. By the time police arrived, Barnes had left the apartment. Upon questioning, Barnes yelled to the the police that they were not needed because he was leaving.  Mary appeared, giving him a duffle bag, and then returned to the Barnes apartment. Barnes and Mary reentered the apartment and Barnes told the police that they could not enter.  Mary told Barnes to "just let the police in."  When the police entered Barnes resisted violently. The police used a Taser and subdued Barnes. He was charged with battery on a police officer, resisting law enforcement, disorderly conduct, and interference with reporting a crime, all class A misdemeanors. 

As part of the trial, Barnes wanted to give this instruction to the jury:
 

When an arrest is attempted by means of a forceful and unlawful entry into a citizen‘s home, such entry represents the use of excessive force, and the arrest cannot be considered peaceable. Therefore, a citizen has the right to reasonably resist the unlawful entry. 

The trial court did not permit Barnes to give the instruction. The jury found Barnes guilty. Barnes then appealed, and the Indiana Court of Appeals found that the instruction should have been given, and its omission invalidated the convictions, ordering a new trial. The Supreme Court then reviewed the case (prior to any new trial) to determine whether a new trial was needed.

The Supreme Court's reasoning goes:

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. Accordingly, the trial court‘s refusal to give Barnes‘s tendered instruction was not error.

The English common-law right to resist unlawful police action existed for over three hundred years, and some scholars trace its origin to the Magna Carta in 1215....The United States Supreme Court recognized this right in Bad Elk v. United States, 177 U.S. 529, 535 (1900): ―If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest. The Supreme Court has affirmed this right as recently as 1948. United States v. Di Re, 332 U.S. 581, 594 (1948) (One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases).

In the 1920s, legal scholarship began criticizing the right as valuing individual liberty over physical security of the officers. Hemmens & Levin...One scholar noted that the common-law right came from a time where ―resistance to an arrest by a peace officer did not involve the serious dangers it does today. Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942). The Model Penal Code eliminated the right on two grounds: ―(1) the development of alternate remedies for an aggrieved arrestee, and (2) the use of force by the arrestee was likely to result in greater injury to the person without preventing the arrest... In response to this criticism, a majority of states have abolished the right via statutes in the 1940s and judicial opinions in the 1960s.

We believe 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. E.g., Warner...(citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist); State v. Hobson, 577 N.W.2d 825, 835–36 (Wis. 1998) (citing the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies). We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries....Accordingly, the trial court‘s failure to give Barnes‘s proffered jury instruction on this right was not error.

The Indiana Court's reasoning is specious, because the United States has continued to violate the Consititution and common law liberties through the Patriot Act.  By granting itself leeway to violate any American's rights merely by calling him a terrorist, the Patriot Act overturns all of the Indiana Court's reasoning.  It does not permit bail. It permits indefinite detention. It does not require prompt arraignment. It does not require  the rules of evidence.  Rather than weakening  the liberties that Indiana grants to its citizens, the Supreme Court should be strengthening them in light of current events.

I do not speak for the people of Indiana, but they, like New Yorkers, seem to have allowed themselves to be subjugated to an illegitimate legal system.

With respect to the Patriot Act, the Democratic Party-dominated Senate again proves that it opposes civil liberties. With all of the Democrats' claims during the Bush years that they didn't like Bush because he curtailed liberty, the Demcorats have not repealed the Patriot Act, despite ample opportunity to do so. Obama has turned out to be an anti-Semitic version of Bush. 

The Patriot Act's chief opponent in the Senate is a Republican, Rand Paul.  John Tate of the Campaign for Liberty writes:

On Thursday, Speaker John Boehner and Senate Minority Leader Mitch McConnell collaborated with Senate Majority Leader Harry Reid in a backroom pact to extend the so-called "Patriot" Act - with as little debate as possible - for 4 years before some of the most liberty-savaging components expire on Friday, May 27.

The surveillance state's ability to snoop through your business records, pry into your library book checkouts, monitor so-called "lone wolfs," and spy on your personal communications through roving wiretaps will be extended until 2015, which "coincidentally" is not an election year.

So much for all that lofty rhetoric last fall about adhering to the Constitution.

By taking a chainsaw to the Fourth Amendment, they have pledged their allegiance to the Surveillance State.

Even more galling, a cloture vote is scheduled for 5PM Monday, because they believed Senator Rand Paul would be out of town, and they would have a free hand to slip extending the government's domestic spying capabilities through without anyone noticing.

And that has always been the plan from the get-go.

So it goes. The Democrats lied to their constituents and claimed to oppose the Patriot Act, which legalizes searches and seizures. At the same time, the courts in Indiana brush aside one of the few remaining defenses against police incursions on freedom.  Democrats crow about how wonderful Obama is while the Democratic Party out-bushes Bush. The Republicans can't figure out what the meaning of the word "freedom" is. So American freedom dies.