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Mirror of Justice
Every so often, a case unites right and left against the courts. Think of Kelo v. New London, for example. The court's holding that government can use eminent domain to transfer private property to another private entity it judges will use it more productively outraged both conservatives (who like private property) and liberals (who instantly realized that the case opened the door for rich corporations to bribe municipalities to pull land out from under the houses of the poor). But I would not have called Barnes v. Indiana as a case likely to join that pantheon.
Decided earlier this week by the Indiana Supreme Court,* the unremarkable holding of Barnes is that if the police violate your rights by executing an illegal entry into your property, your remedy is at law (presumably suppression under Miranda if the entry leads to a prosecution and a § 1983 suit if not, see, e.g., Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. 2009)) rather than to physically resist the intrusion. In various fora, however, friends, acquaintences, and media outlets on right and left alike are fuming about the decision and saying all manner of nasty things about it—perhaps the very silliest being this article, which implies the decision overrules Magna Carta.
What the critics all seem to miss is that Barnes isn't about rights but remedies. As Justice Rucker's dissent notes (although sharp-eyed readers will note that he quotes Payton v. New York's syllabus—not the case itself, as his citation erroneously claims), the core of the Fourth Amendment is the maxim that a man's home is his castle, inviolable by the police without a warrant. But that's a red herring. The question here isn't whether the entry was illegal, it's what do you do when the police violate your rights?
Justice Rucker and the critics make an enormous, unwarranted, irrational, and frankly dangerous leap: If the Fourth Amendment forbids "all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life," Payton, 445 U.S., at 585 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)), they assume that it must also incorporate the so-called common law "right to resist" (see Bad Elk v. United States, 177 U.S. 529, 534-35 (1900)). We'll return to that point in a moment, but first, let's take a moment to realize just how abberational this claim is. Reasonable minds can—and the justices did—differ over whether suppression is appropriate in cases like Payton, Arizona v. Evans, and Herring v. United States, where police conducted searches that were in fact illegal. But no one thinks that Mssrs. Payton, Evans, and Herring should have physically resisted the officers. Reasonable minds can differ over whether Mr. Lyons should have been able to sue Los Angeles, but no one thinks he would have been justified to start shooting. Reasonable minds can differ over whether the police should be able to enter a house where one physically present resident says they can but another objects (in a horribly mistaken decision, Georgia v. Randolph, the court said no), but no one suggests that Mr. Randolph should have been allowed to take a swing at the cops with the nearest blunt instrument. There is simply no other area of Fourth Amendment law, or any American law at all, where vigilantism is thought the appropriate remedy. Why would this be an exception?
That's what puzzles me about the case's critics. The more reasonable among them (Justice Dickson, for instance) call for a narrower rule, as if the court was swinging a mighty battleaxe with scant concern for innocent bystanders. But it isn't. At risk of repetition—but we have to be clear about this—Barnes holds that your remedy for illegal entry is the same as your remedy for any other illegal search or entry.
As the court observes (in some ways echoing the U.S. Supreme Court's observations in Hudson v. Michigan about improved police professionalism), the reasons for the rule have evaporated with advances in modern police technology:
[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, [The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942)] (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).
No one will deny that a night in the cells is an unpleasent experience, but let's remember what on the other side of the balance: The physical safety of our police officers. As the court notes, "allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest...." That problem becomes particularly acute if we discard a fiction that I indulged above: I've referred several times to "illegal entries" and "illegal searches", but how do we know that a search or entry is illegal? Who gets to decide whether an entry was illegal—and when? Suppose we hold that residents have a right to resist illegal entries; the upshot must be that the resident gets to decide whether the entry is illegal, and will do so in the heat of the moment, because how else could he decide whether to resist? And what the critics fail to realize is that every motion to suppress on Fourth Amendment grounds is a claim that the search or entry was illegal, which means that almost every defendant in those cases could notionally have returned fire under the critics' proposed rule. Proponents of such a rule are going to tell us that Barnes is insane?
Take the Hudson case just mentioned, for example. The state would ultimately concede that Hudson's rights were violated, but the knock-and-announce rule is incredibly subtle, riddled with situation-specific trapdoors and ambiguity—"How many seconds’ wait are too few?" Three to five seconds is too little, as Michigan conceded, and fifteen to twenty is sufficient, see United States v. Banks, 540 U.S. 31 (2003), so, how about ten, cf. United States v. Southerland, 466 F.3d 1083 (D.C. Cir. 2006)? After the dust settled and all the facts could be reviewed, it was decided that Hudson's rights had been violated. In the heat of the moment, however, the police made a snap judgment that the entry was legal; could Hudson—well-versed as I'm sure he was in the common law and fully familiar with Banks—have made a snap judgment that the entry was illegal? And if so, did Hudson have a right to resist that entry? (He certainly had the means: "A loaded gun was lodged between the cushion and armrest of the chair in which he was sitting." How about the defendant in Kentucky v. King; was that entry legal? Did he have a right to resist? The mere fact that the Supreme Court of the United States has to decide whether such searches and entries are legal strongly argues (as Barnes puts it) that it's "unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment."
Lastly, I reserved a point earlier that we must come back to, if briefly. No one disputes that there was a shallow-rooted common law right to resist, and American courts up to and including the U.S. Supreme Court have said so, at least as recently as a century ago. (It is questionable, however, whether that right, properly-understood, is applicable in cases like this; cf. Bad Elk, supra, 177 U.S. at 535; Matthew Lippman, Contemporary Criminal Law 252 et seq. (2d ed. 2010).) But the common law develops, and the Supreme Court of Indiana assuredly has the authority to modify the common law of Indiana. Indeed, the development isn't even novel, see John Ferdico et al, Criminal Procedure 336 (10th ed. 2009) ("While some states continue to use the common law rule allowing resistance to an illegal arrest, an increasing number of states have … reject[ed] the … rule (emphasis added)). Thus, the dissenters need something else: They must contend that the common law right is incorporated into the Fourth Amendment, placing it (theoretically—we opened with Kelo) beyond the reach of the courts to change. That's sound as a general proposition; cf. Wilkinson v. Arkansas, holding that the Fourth Amendment incorporates the common law knock-and-announce rule. But is the right to resist so incorporated? Who says? The dissent simply asserts it, with neither citation nor argument. Surely more probing analysis—indeed, any analysis—is required.
The hostile reaction of ACLU types to Barnes is par for the course; it's a Fourth Amendment decision that isn't explicitly pro-defendant. In days gone by, however, conservatives were law and order types who bemoaned the Warren Court's revolution in criminal process and supported robust police authority to tackle crime. We weren't sissies about the exclusionary rule; we recognized that the Fourth Amendment's ambition of protecting the innocent from overrreaching government can't be accomplished without incidentally protecting the guilty from criminal law, but hoped to limit the overspill. What has happened? Why are some conservatives alarmed by this case?
I'll admit that I think the explanation is simple. Could it be no more than the tenor of the times, so ready to perveive lurking tyranny in every shadow? I posted this week about S.697, in part because I was so astonished to see the almost hysterical overreaction to it in some quarters: "Unconstitutional!" "Tyrannical!" "Obama Ceasar!" Are we now so paranoid about the Obama administration—granted, that most aspirational of Presidents—that some folks don't see this as a case about drug dealers, abusers, and drunken idiots opening fire on the police, but themselves, heroically resisting marauding federal Sardaukar invading our homes? That seems uncharitable, but I can't imagine anything else that would justify Barnes' critics advocating, in effect, a wild west "shoot first" rule. We shouldn't put our police in greater danger every day simply because some folks fantasize that any day now, the day black helicopters will descend to take our guns and impose tyranny.
*As will become apparent, my analysis is not limited to the facts of Barnes, but I should recite them anyway. Our two descriptions of the facts come from the Supreme Court's opinion (linked above) and that of the Court of Appeals (available here); I shall attempt to synthesize.
On November 18, 2007, the 9/11 dispatcher received a 9/11 call. A woman explained that her husband was throwing things around the apartment but that he had not struck her. A dispatch went out as domestic violence in progress. Officer Reed was the first to respond to the dispatch and to arrive on the scene, where he found Barnes leaving the apartment carrying a duffel bag. Reed explained that he was responding to a 9/11 call; Barnes, agitated and yelling, told Reed that his services wouldn't be needed. When Barnes continued to harrang Reed, the latter warned that an arrest for disorderly conduct was in the offing, prompting Barnes to threaten a fight.
At this point, the wife, Mary, walked out of the apartment. (Remember, the cops are responding to a domestic abuse in progress dispatch; this is their first time seeing her. For all they knew, she was dead inside.) Your imagination will fill in doubtless colorful dialogue for what the court blandly describes as follows: "Mary walked out of the apartment carrying another duffel bag. She threw the bag down on the ground, telling Barnes to take the rest of his things." She stalked back into the apartment followed by Barnes, Reed, and Officer Henry, who had since arrived. At the threshold, Barnes blocked the officers, saying that they could not enter the apartment, and despite Reed's explanation that they needed to come in to investigate the 911 call, continued to deny them entry.
While this was happening, the officers could hear Mary telling Barnes "Don?t do this" and "just let them in." At this point, Reed attempted to walk past Barnes to enter the apartment, leading Barnes to initiate a physical altercation: he shoved Reed against the wall and a tussle ensued until Reed and Henry had subdued Barnes.