“[T]here can be a fine line between reasonable resistance and battery, but that is for the jury to resolve.”
Eric Rasmusen has an excellent point-by-point critique, which I also linked to in my last post, of the Indiana Supreme Court’s September 2011 opinion granting rehearing and “restat[ing] the essential holding” in Barnes v. State. The Court’s original opinion held that the common-law “right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.” The opinion granting rehearing, on the other hand, holds that the common-law right to reasonably resist unlawful entry into a home is not a defense to the crime of battery on a police officer. (Furthermore, it also appears to suggest that the Indiana statute authorizing “reasonable force . . . to prevent or terminate” the unlawful entry of a dwelling is not a defense to the crime of battery on a police officer, either, on the grounds that battery on a police officer to prevent or terminate the police officer’s unlawful entry of a dwelling is never “reasonable.”)
Rasmusen writes: “In general, compare the legal craftsmanship of the Court of Appeals opinion with the Supreme Court one, especially in the care and respect with which it explains why it thinks the other side’s arguments are wrong.” The Court of Appeals opinion addressed the central issue in the case as follows:
Barnes argues that the trial court abused its discretion when it refused to give the following jury instruction:
“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.” Appellant’s App. p. 18.
Barnes’s tendered instruction was not covered by the other instructions given. Further, Barnes’s instruction is a correct statement of the law. “Indiana law recognizes the right to reasonably resist the unlawful entry of a police officer into a person’s home.” Robinson v. State, 814 N.E.2d 704, 707 (Ind. Ct. App. 2004) (citing Alspach v. State, 755 N.E.2d 209, 211 (Ind. Ct. App. 2001), trans. denied).
. . .
Citing Robinson, the State argues that the instruction should not have been given because a defendant may not resist unlawful entry by battering a police officer. In Robinson, police officers responding to a 911 call of a possible domestic disturbance, refused to leave the premises after Robinson told them to leave. When an officer attempted to come onto the porch of the residence, Robinson pushed the officer off of the porch. Robinson appealed his conviction for battery on a law enforcement officer, and we concluded that Robinson’s act of pushing the officer off of his porch was not reasonable resistance. 704 N.E.2d at 708. Specifically, we stated “[t]he right to reasonably resist an unlawful entry does not include the right to commit a battery upon a police officer.” Id.
However, our court also stated: “there can be a fine line between reasonable resistance and battery, but that is for the jury to resolve.” Id. at 709 (emphasis added). Therefore, whether Barnes’s act of shoving Officer Reed out of the doorway of his apartment was battery or “reasonable resistance” is a fact question for the jury to resolve.
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