Appeal from the Vanderburgh Superior Court, No. 82D02-0808-CM-759 The Honorable Mary Margaret Lloyd, Judge On Petition to Transfer from the Indiana Court of Appeals, No. 82A05-0910-CR-592
The opinion of the court was delivered by: David, Justice.
A jury convicted Richard Barnes of Class A misdemeanor battery on a law enforcement officer, Class A misdemeanor resisting law enforcement, and Class B misdemeanor disorderly conduct. Barnes contests that the trial court's failure to advise the jury on the right to reasonably resist unlawful entry by police officers constituted reversible error and that the evidence was insufficient to sustain his convictions. We hold that there is no right to reasonably resist unlawful entry by police officers. We further hold that the evidence was sufficient and affirm Barnes's convictions.
Facts and Procedural History
On November 18, 2007, Richard Barnes argued with his wife Mary Barnes as he was moving out of their apartment. During the argument, Mary tried to call her sister but Barnes grabbed the phone from her hand and threw it against the wall. Mary called 911 from her cell phone and informed the dispatcher that Barnes was throwing things around the apartment but that he had not struck her. The 911 dispatch went out as a "domestic violence in progress."
Officer Lenny Reed, the first responder, saw a man leaving an apartment with a bag and began questioning him in the parking lot. Upon identifying the man as Barnes, Reed informed him that officers were responding to a 911 call. Barnes responded that he was getting his things and leaving and that Reed was not needed. Barnes had raised his voice and yelled at Reed, prompting stares from others outside and several warnings from Reed.
Officer Jason Henry arrived on the scene and observed that Barnes was "very agitated and was yelling." Barnes "continued to yell, loudly" and did not lower his voice until Reed warned that he would be arrested for disorderly conduct. Barnes retorted, "if you lock me up for Disorderly Conduct, you're going to be sitting right next to me in a jail cell." Mary came onto the parking lot, threw a black duffle bag in Barnes's direction, told him to take the rest of his stuff, and returned to the apartment. Reed and Henry followed Barnes back to the apartment. Mary entered the apartment, followed by Barnes, who then turned around and blocked the doorway. Barnes told the officers that they could not enter the apartment and denied Reed's requests to enter and investigate. Mary did not explicitly invite the officers in, but she told Barnes several times, "don't do this" and "just let them in." Reed attempted to enter the apartment, and Barnes shoved him against the wall. A struggle ensued, and the officers used a choke hold and a taser to subdue and arrest Barnes. Barnes suffered an adverse reaction to the taser and was taken to the hospital.
Barnes was charged with Class A misdemeanor battery on a police officer, Class A misdemeanor resisting law enforcement, Class B misdemeanor disorderly conduct, and Class A misdemeanor interference with the reporting of a crime. Before the trial, Barnes tendered a jury instruction on the right of a citizen to reasonably resist unlawful entry into the citizen's home.*fn1
The trial court refused Barnes's instruction and did not otherwise instruct the jury as to the right to reasonably resist. The jury found Barnes guilty of battery on a police officer, resisting law enforcement, and disorderly conduct.
Barnes appealed, challenging the trial court's refusal to give his tendered jury instruction and the sufficiency of the evidence supporting his convictions. The Court of Appeals found that the trial court's refusal of Barnes's tendered jury instruction was not harmless error. Barnes v. State, 925 N.E.2d 420, 426 (Ind. Ct. App. 2010). The Court of Appeals also found that the evidence was insufficient to sustain the disorderly conduct conviction. Id. at 426--29. The Court of Appeals therefore ordered a new trial on the battery and resisting charges. Id. at 429. We granted transfer.
Barnes contests that his tendered jury instruction should have been given because it was a correct statement of a viable legal defense supported by the facts and because that defense was not covered by the other instructions. We acknowledge that the Court of Appeals followed its own precedents in its analysis. 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. Craig Hemmens & Daniel Levin, "Not a Law at All": A Call for the Return to the Common Law Right to Resist Unlawful Arrest, 29 Sw. U. L. Rev. 1, 9 (1999). 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, supra, at 18. 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." Hemmens & Levin, supra, at 23. In response to this criticism, a majority of states have abolished the right via statutes in the 1940s and judicial opinions in the 1960s. Id. at 24--25.
The Court of Appeals addressed this issue in Casselman v. State, 472 N.E.2d 1310, 1318 (Ind. Ct. App. 1985). In Casselman, the defendant did not appear at a judgment proceeding on the advice of his attorney. Id. at 1311. When the sheriff's deputy went to his home to effect a civil arrest, the defendant attempted to close the door in the deputy's face. A brief struggle ensued, and the defendant was arrested when he retreated into his house. Id. at 1311--12. The Court of Appeals found that the deputy "was not lawfully engaged in the execution of civil process" when he prevented the defendant from closing the door to his home. Id. at 1314. Although the Court of Appeals acknowledged the trend of abolishing the common-law right to resist an ...