ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Erin L. Berger Gregory F. Zoeller
Evansville, Indiana Attorney General of Indiana
ATTORNEY FOR AMICI CURIAE Stephen R. Creason
Joel M. Schumm Chief Counsel
Indianapolis, Indiana Office of Attorney General
ATTORNEY FOR AMICI CURIAE Karl M. Scharnberg
Eric C. Bohnet Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
_____________________________________________________________________
In the FILED
Sep 20 2011, 10:00 am
Indiana Supreme Court CLERK
_________________________________ of the supreme court,
court of appeals and
tax court
No. 82S05-1007-CR-343
RICHARD L. BARNES,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
Appeal from the Vanderburgh Superior Court, No. 82D02-0808-CM-759
The Honorable Mary Margaret Lloyd, Judge
_________________________________
On Petition for Rehearing
_________________________________
September 20, 2011
David, Justice.
When law enforcement officers responding to a “domestic violence in progress call”
arrived at the scene, the husband, about whom his wife had made the 911 call, got physical with
the responding police officer. A jury found Richard Barnes guilty of battery on a police officer
and resisting arrest. We earlier affirmed his conviction, and he has petitioned for rehearing.
In addition, the Attorney General has requested rehearing, as have amicus curiae
members of the Indiana General Assembly, who urge clarification or modification of our prior
ruling.
The petitions for rehearing, advanced by thoughtful people, have convinced us that the
appropriate course is to grant rehearing and speak further on the law of this case.
At the heart of this appeal has been the suspected spouse abuser’s contention that the trial
court erred when it refused to instruct the jury that he had the right to get physical with the
police officers if he believed their attempt to enter the residence was legally unjustified.
Neither the trial court, nor the Court of Appeals, nor this Court have agreed with Barnes
that the officers violated any statute or any provision of the state or federal constitutions when
they sought entry, at the wife’s request, to investigate and ensure the wife’s safety.
The central question we addressed earlier was whether the defendant was entitled to have
the jury told that the common law right to defend one’s home against invasion was a defense
against Indiana’s statute that criminalizes violence against police officers acting in the course of
their duties. The legislature has declared it to be a Class A misdemeanor when one commits
battery on a law enforcement officer “while the officer is engaged in the execution of the
officer’s official duty.” Ind. Code § 35-42-2-1(a)(1)(B) (2008).1
Barnes’s demand for this instruction has rested solely on the common law rule that “a
man’s home is his castle,” which gives him the right to reasonably resist unlawful entry. The
amicus legislators additionally cite a statute not pleaded by Barnes which creates a defense to
crimes of violence, authorizing a person to use “reasonable force, including deadly force, against
another person . . . if the person reasonably believes that the force is necessary to prevent or
terminate” the unlawful entry of his dwelling or occupied motor vehicle. I.C. § 35-41-3-2(b).
As will appear below, the Attorney General’s analysis of this statute speaks to the same point
raised by the amicus.
1
Courts have long understood that the legislature intended battery on a law enforcement officer to require proof that
the officer was engaged in official duties. See Tapp v. State, 406 N.E.2d 296, 302 (Ind. Ct. App. 1980) (“[I]t is the
nature of the acts performed and not whether the officer is on or off duty, in or out of uniform, which determines
whether the officer is engaged in the performance of his official duties.”).
2
The Attorney General’s response to Barnes’s petition for rehearing urges that this right
should remain intact but likewise urges that “reasonable resistance does not include battery or
other violent acts against law enforcement.”
We deem the Attorney General to have restated the central thesis of our resolution of this
case. As he says,
Tense and even dangerous police-citizen encounters fit no limited pattern;
reactions and decisions are made in the split second, and each incident is unique.
The hindsight, after-the-fact evaluation by the judiciary is inherently a case-by-
case process, but our courts have shown themselves equal to the task as they
strike the correct balance between safety and privacy.
The Attorney General is correct that making such decisions is inherently a matter based
on fact, but whether a criminal defendant may be excused from a crime created by statute is a
matter of general law. Consistent with his earlier point, we hold that the Castle Doctrine is not a
defense to the crime of battery or other violent acts on a police officer.
Our holding does no more than bring Indiana common law in stride with jurisdictions that
value promoting safety in situations where police and homeowners interact. Importantly, we
observe the actions in this case were “appropriate to a rapidly unfolding situation in the
immediate aftermath of a reported” domestic violence situation. Commonwealth v. Gomes, 795
N.E.2d 1217, 1222 (Mass. App. Ct. 2003) (refusing to grant a jury instruction on the right to
forcibly resist an unlawful police entry).
We also emphasize that this holding does not alter, indeed says nothing, about the
statutory and constitutional boundaries of legal entry into the home or any other place. Our
earlier opinion was not intended to, and did not, change that existing law about the right of the
people to be secure in their persons, houses, and papers against unreasonable searches and
seizures. U.S. Const. amend. IV; Ind. Const. art. 1, § 11.
This also reflects the basis for our holding about defenses available to criminal
defendants charged with violence against police officers: the ruling is statutory and not
constitutional. The General Assembly can and does create statutory defenses to the offenses it
criminalizes, and the crime of battery against a police officer stands on no different ground.
What the statutory defenses should be, if any, is in its hands.
3
Having granted rehearing and restated the essential holding in this case, we continue to
affirm Barnes’s conviction.
Shepard, C.J., and Sullivan, J., concur.
Dickson, J., concurs in result.
Rucker, J., dissents with separate opinion.
4
Rucker, Justice, dissenting.
I agree rehearing should be granted in this case. However I disagree with the Majority’s
resolution. There appears to be some tension between Ind. Code § 35-42-2-1(a)(1)(B) making it
a criminal offense to commit battery on a law enforcement officer “while the officer is engaged
in the execution of the officer’s official duty,” and Ind. Code § 35-41-3-2(b) providing persons
the right to use “reasonable force . . . if the person reasonably believes that the force is necessary
to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling.”
I would grant rehearing to explore whether, as a matter of Indiana statutory law, defendant
Barnes was entitled to a jury instruction regarding police entry into his home.