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Can I resist an unlawful police entry into my home?

Can I resist an unlawful police entry into my home?

No, effective May 12, 2011.

By statute, the General Assembly adopted the common law of England as Indiana law. At common law, there was a broad right to resist unlawful police action. This right applied to citizen-police encounters on the street as well as those within one’s dwelling.

This pits two important rights against each other — the right to individual freedom and to be free from arbitrary police action versus police-officer safety. Indiana law has long rejected the common-law right to resist unlawful arrest (seizures) by a police officer of a citizen.

A citizen’s remedy for an unlawful arrest is a civil-rights or other civil action against the police officer and police department and the governmental agency under whose authority they are accountable to and serve under. These legal rights and remedies did not exist at common law.

Under the civil-action remedy, this rebalanced these competing legal interests (individual freedom versus a police officer’s safety). Under this legal rationale, an aggrieved person can sue a police officer for unlawful arrest and be made whole by a monetary award.

Nevertheless, the Indiana Supreme Court had not weighed in on this balance as it related to a person’s dwelling. Throughout common and Indiana law, a person’s home was treated differently in that it was afforded special treatment on many legal fronts.

In fact, unlike elsewhere, for a police officer to conduct a search or seizure within a private dwelling in Indiana, he or she must have a search warrant or fall within one of the clearly delineated exceptions to a warrant.

For example, a police officer does not need a search warrant to enter a person’s private home, if the police officer reasonably believes the occupant is destroying the evidence the search warrant would yield.

The Court of Appeals has thus interpreted and applied Indiana law such to allow a citizen to resist an unlawful police entry into a home. The reason it did so is the heightened expectation of privacy in one’s home.

The policy being the sanctity of one’s home is so great that no other remedy is complete (i.e., the monetary relief substituted for the right to resist unlawful arrest by a police officer on the street or in public). On May 12, 2011, this all changed.

At this time, the Indiana Supreme Court handed down its decision in Richard L. Barnes v. State of Indiana. In a 3-2 decision (2 justices dissenting), the Indiana Supreme Court changed the course of Indiana law and held that the right to resist an unlawful police entry into a home is against public policy.

In addition to the civil remedy available to an aggrieved person by an illegal entry by a police officer into a home, and other changes since common law, the Indiana Supreme Court found the rule was based on unsound policy.

Precisely, the Indiana Supreme Court found “that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

Thus, despite lack of probable cause, and a search warrant or exigent circumstances, there is no longer any right to resist a law enforcement officer’s unlawful entry into one’s home. For this reason, a citizen can and will be convicted for resisting arrest or battery of police officer if he or she does not allow this intrusion.

This is a marked change in Indiana law. Be aware.

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