Wabash Valley Tea Party

Recent Indiana Supreme Court Ruling 

 

WABASHVALLEYTEAPARTY.COM

 

BARNES V STATE OF INDIANA

May 12, 2011

                The full opinion is available on the Indiana Supreme Court’s WebSite. The following is my summary. At our June 14 meeting I will present recommendations for action to the WVTP meeting.

 

Majority Opinion and discussion

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.

1.       We hold that there is no right to reasonably resist unlawful entry by police officers.

2.       We further hold that the evidence was sufficient and affirm Barnes‘s convictions

 

In the first part of his opinion (Jury Instruction) Justice David states: ”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.

At this point in the discussion David cites the possible origin of the right to resist as including the Magna Carta (1215) and then summarizes several United States Supreme Court decisions supporting the right  (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; (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.). I think we must note that any reference to the Fourth Amendment in his opinion is at best oblique, for example his reference to modern Fourth Amendment jurisprudence.

He then cites “legal scholarship In the 1920s”, as criticizing the valuing of individual liberty over physical security of the officer. He then holds that such resistance is now unnecessary because these acts are now, in our present society, likely to involve more serious dangers than were present in 1215. These less serious dangers of arrest for our ancestors are noted later in the discussion to have included indefinite detention, lack of bail, disease-infested prisons and physical torture, not to mention the outcomes of any quarter stave versus swords, arrows and guns conflicts.

David notes in his opinion that 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. I am still working my way through the Model Penal Code but the second points interests me.

He later states that “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest—as evident by the facts of this instant case.” I assume that had Barnes’ resistance prevented his arrest and resulted in injury only to the persons entering illegally, the response would have better satisfied David’s criteria.

David did not dispute the Court of Appeals finding 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. He instead focused on that Court’s opinion concerning unlawful entry itself (he refers to the Appellate Court’s concern with the heightened expectation of privacy in one‘s home and recognition of a right to resist an unlawful entry into a home by a police officer).

In my opinion the following quotation best captures the problem in this opinion: We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. For this justice, and those who concur with him, this opinion is more a matter of belief than an application of law; he and those who share his convictions appear to believe that their ideas trump the Fourth Amendment, the rest of the Constitution… you get the idea.

David goes on to state that: “Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action.” By the way, the use of nowadays seems folksy, a phrase used  by us down- home folk; in this context and this decision, the word is, in my opinion, undoubtedly used to convey precisely that impression. The remedies he lists are:  (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; many at the personal expense of the arrested. Among the attendant problems with these remedies, however, as Justice Dickson noted, “… the consistent existence of and adherence to many of these factors unfortunately remains less than ideal. Courts continue to see claims alleging excessive preliminary detention, failure to promptly set bail, and excessive use of force by police.”

David states that “Because we decline to recognize the right to reasonably resist an unlawful police entry, we need not decide the legality of the officers‘ entry into Barnes‘s apartment. It is unrealistic to expect officers to wait for threats to escalate and for violence to become imminent before intervening. Here, the officers acted reasonably under the totality of the circumstances.” I must add at this point that this problem the Court addressed was not the circumstances under which authorities may enter the home without a warrant nor the issue of force used against parties who are known, or should reasonably be known, to be police officers. In any case, these issues have been addressed on multiple occasions by Courts at all levels. In sum, David concludes that: “We hold that in Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.”

Conclusion

Barnes‘s conviction and sentence are affirmed.

Shepard, C.J., and Sullivan, J., concur.

Dickson, J., Rucker J dissent with separate opinions.

DISCUSSION Dissenting Judges opinion

Quoting the dissenting opinions, “in acknowledging the historic common-law right to reasonably resist unlawful entry by police officers, the majority tethers its abrogation of this right on (a) modern developments that have diminished the dangers of arrest at common law (e.g., indefinite detention, lack of bail, disease-infested prisons, physical torture), (b) the desire to minimize the risk of the level of violence and risk of injuries, and (c) the rights of police to enter a home even without a warrant under certain circumstances.” Also noted in the dissenting opinions the issue addressed by this decision is not the use of force by a private citizen in resisting a peaceful arrest by an individual who he knows, or has reason to know, is a police officer performing his duties regardless of whether the arrest in question is lawful or unlawful.‖ This is a significant issue in itself and one that might have been addressed in a less broad decision.

The dissenting justices further wrote that “the issue here is that a citizen‘s right to resist unlawful entry into her home rests is based on a very different ground, namely, the Fourth Amendment to the United States Constitution. Indeed, the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed…‖ There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home… Indeed a respectable argument could be made that police response to a report of domestic violence is an exigent circumstance justifying entry into a home without a search warrant.”

Justice Rucker quotes the eighteenth century remarks attributed to William Pitt, Earl of Chatham, on the occasion of a debate in Parliament:

“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!

 The same is no less true today and applies equally to forces of the State.”

 

DOC

 

 

 

 

 

 

An important office up for election next year is the Senate seat currently held by Senator Lugar. To gain a better understanding of Senator Lugar's positions, I noted from the website “Lugar for Senator” his stated positions on issues/topics as reported on that source. I have listed these positions as stated, in 5 categories.

 

The first Category is Strongly Opposes Topic; the second is Opposes topic; the third is No opinion; the fourth is Favors topic; and the fifth is Strongly Favors topic.  The table will help demonstrate where he stands on various issues:

Strongly Opposes

Opposes

No Opinion

Favors

Strongly Favors

Same Sex domestic partnership benefits

Abortion as a woman’s right

Drug use is immoral and laws should be enforced against drug use

Illegal immigrants earning citizenship

Teacher-led prayer in public schools

Taxes being more progressive

Requirements to hire more women and minorities

 

Churches providing welfare services

Privatizing Social Security

Legislation supporting that Patriot Act harms civil liberties

More federal funding for health coverage

 

Death Penalty

Parents choosing schools via vouchers

 

Stricter limits on political campaign funds

 

Absolute right to gun ownership

Manatory three-strikes sentencing laws

 

Replacing coal and oil with alternatives

 

 

Supporting and expanding free trade

 

 

 

 

Expanding the armed forces






In general these stated positions are, in my opinion, consistent with the electorate. I think each of us has areas with which we disagree with Senator Lugar’s stated positions. For me such a list would include his positions on the following: free trade; enforcing laws concerning drug use and abuse; stricter limits on political campaign funds. Your list is probably different.

 

I decided to investigate further two of Senator Lugar’s positions with which I agree, the goal being to gain insight into the effectiveness of his record in regard to each stance. The first is his stated opposition to replacing coal & oil with alternatives.

 

The following supports opposition to replacing coal & oil with alternatives, that is, are consistent with his stated position.

·         Rated 5% by the LCV, indicating anti-environment votes

·         Rated 0% by the CAF, indicating opposition to energy independence

·         Open the Outer Continental Shelf for oil & gas leasing

·         YES on do not require ethanol in gasoline

·         NO on reducing funds for road-building in National Forests

·         YES on terminating CAFE standards within 15 months

·         NO on removing consideration of drilling ANWR from budget bill

·         NO on reducing oil usage by 40% by 2025 (instead of 5%)

·         NO on disallowing an oil leasing program in Alaska's ANWR

·         NO on banning drilling in the Arctic National Wildlife Refuge

·         NO on addressing CO2 emissions without considering India & China

·         NO on tax incentives for energy production and conservation

·         YES on requiring full Senate debate and vote on cap-and-trade

·         YES on protecting middle-income taxpayers from a national energy tax

·         NO on $2 billion more for Cash for Clunkers program

The following actions/votes support replacing coal & oil with alternatives, i.e., appear to be inconsistent with his stated position

·         Keep efficient air conditioner rule to conserve energy

·         Tax credit for gas stations providing 85% ethanol fuel

·         Sponsored bill raising CAFE by a 4% per year until 2018
·         Sign on to UN Framework Convention on Climate Change:     

·         Set goal of 25% renewable energy by 2025:               

·         NO on defunding renewable and solar energy:                      

·         NO on ending discussion of CAFE fuel efficiency standards

·         NO on preserving budget for ANWR oil drilling:                         

                    (ANWR)   the Arctic National Wildlife Refuge

·         YES on targeting 100,000 hydrogen-powered vehicles by 2010

·         YES on factoring global warming into federal project planning

·         YES on removing oil & gas exploration subsidies

This information should be reviewed, checked and supplemented but may supply a starting point for objective evaluation of Senator Lugar on this issue

 

The second topic of interest is Senator Lugar’s stated position of favoring an absolute right to gun ownership. The validity of this stance must be evaluated in the light of Senator Lugar’s recent votes for Kagan and Sotomayor.

 

Kagan, a recent Obama nominee for the Supreme Court (a lifetime position) confirmed by the Senate with Senator Lugar voting yes, is a woman of some interest and strong opinions. Fortunately she has a public history that can be used to anticipate what her orientation and likely votes on the issue of right to gun ownership will be. We will start by noting that Kagan helped draft Clinton's 1997 order banning import of rifles that had been considered "sporting" and importable since 1968.

 

Dissatisfied that firearms importers were strictly complying with the 1990 and 1994 statutory definitions of "assault weapons," President Clinton wished to ban more gun imports. So he sidestepped Congress, decreed a suspension of import permits, and ordered a new study by BATF with the conclusion that the targeted firearms would no longer be considered "sporting" and hence not importable. Democratic Senator Pat Leahy, who was then the ranking member of the Senate Judiciary Committee, wrote to President Clinton that he "strongly believes that using a Presidential directive to avoid the normal legislative process regarding any changes to the assault weapons ban is the wrong way to go."

 

As requested by Clinton, Charles F.C. Ruff and Elena Kagan worked on drafting the ban directive. The directive is filled with rhetoric about what weapons were to be characterized as "Assault-Type Rifles." (Under the proper technical definition, an "assault rifle" is a selective-fire weapon capable of full automatic fire.) The Kagan-Ruff directive states: "A recent letter from Senator Dianne Feinstein emphasized again that weapons of this type are designed not for sporting purposes but for the commission of crime."

In response to question from Senator Russ Feingold on June 29, 2010, Ms. Kagan said that her gun control work with President Clinton "actually had bipartisan support here in Congress." At least in regard to the import ban, this was not entirely accurate. The very reason for imposing the ban administratively — for evading what Senator Leahy called "the normal legislative process" — was the absence of congressional support.

To Senator Feingold, Ms. Kagan said that her White House work was "to keep guns out of the hands of criminals, to keep guns out of the hands of insane people." Not so, in regards to the rifle ban. The ban was not directed to improving background checks, or cracking down on the black market. The ban kept guns out of the hands of law-abiding American citizens.

            Perhaps of more significance is Kagan and her approach to the First Amendment. It has been often said that the Second Amendment cannot long endure without a robust First Amendment. In her article "Regulation of Hate Speech and Pornography After R.A.V.," she attempts to find a constitutional way to restrict the sorts of speech that she personally finds offensive.  And in her defense of the federal "depiction of animal cruelty" statute -- which the Supreme Court struck down 8-1 -- she argued for a balancing test weighing the value of speech against its social harm.  Not to mention her arguments in Citizens United, the campaign finance statute that, until it was struck down could have banned books, flyers, and movies that contained political speech.

 

To the Senate Judiciary Committee, Sotomayor repeatedly averred that Heller is "settled law." The Associated Press reported that Sen. Mark Udall said Sotomayor told him during a private meeting that she considers the 2008 ruling that struck down a Washington, D.C., handgun ban as settled law that would guide her decisions in future cases."

 

Yet on June 28, 2010, Justice Sotomayor joined Justice Breyer's dissenting opinion in McDonald v. Chicago, and announced that Heller was wrongly decided and should be over-ruled. Apparently her true belief was not what she told this Committee, but instead: "In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense."

 

This information should be reviewed, checked and supplemented but may supply a starting point for objective evaluation of Senator Lugar's position on these and other issues.  

 

 

 

 

 

 

This is a web memo from Heritage Foundation on the Obama Jobs proposal.

Obama’s Jobs Plan: Permanent Tax Hikes on Job Creators

By Curtis Dubay
September 15, 2011

When President Obama unveiled his much-hyped American Jobs Act to a joint session of Congress last week, he promised that the increased spending and temporary tax cuts the plan entails would be fully “paid for.” He did not specify in that speech the details of how he would offset the costs of his plan other than he would charge the “super committee” with this responsibility.

This week, he released his own proposals to pay for the plan. To no one’s surprise, the plan would offset the costs of its jobs policies solely with tax hikes and not one penny of spending reductions.

The tax increases the President proposes are the same old hodgepodge of tax hikes he has proposed often since taking office, and they have been rejected by Democratic and Republican Congresses alike each time he’s pushed for them. In the end, the tax hikes would be permanent while the jobs policies temporary; thus, the proposal is really a tax hike plan rather than a jobs plan.

Tax Hike on Job Creators

Almost all of the $447 billion in increased revenue called for by President Obama would come from raising taxes on job creators,[1] the same job creators whom President Obama wants to hire more workers to reduce the unemployment rate.

The plan would raise taxes on job creators by capping the deductions that families and businesses earning more than $250,000 a year could claim. It would reduce the deductions of these families and businesses to the amount they could claim had they only earned enough to qualify for the 28 percent tax bracket instead of the higher tax brackets (33 percent and 35 percent) they face now.

For example, under the current tax code, $100,000 of deductions for a family that pays the 35 percent rate reduces its tax bill by $35,000. Under the plan’s tax hike, this family’s deductions could only reduce its tax bill by $28,000, or what it would have been under the 28 percent rate. The tax hike would be bigger as the family’s deductions increase.

This tax hike would be on top of the 3.8 percent surtax on investment income (passed as part of Obamacare) that these same families and businesses will pay beginning in 2013 and the higher marginal income tax rates they will pay if President Obama gets his way and the Bush tax cuts expire at the end of 2012. If marginal income tax rates rise, the tax increase from limiting deductions would increase as well.

The families that would pay these higher taxes are the investors that the economy needs to provide capital to businesses and entrepreneurs so they can expand and start new operations that would employ new workers. A recent study from President Obama’s own Treasury Department shows that 90 percent of businesses that pay their taxes through the individual income tax code and employ workers would pay the higher taxes under the President’s plan.[2]

This tax hike would negate any benefits of the President’s jobs policies. Capping deductions as President Obama’s plan does would raise the marginal effective tax rate of these important job creators and therefore reduce their incentives to invest and take on new risk—permanently. Less investment and less risk-taking means fewer new jobs created.

Since it is likely President Obama’s job proposals would create few, if any permanent, positions, taken together with the tax hike on job creators, his plan would likely reduce employment in the long term.[3]

Industry Specific Tax Hikes

The rest of the tax hikes in President Obama’s plan specifically target the oil industry and jet manufacturers. He would mostly raise their taxes by limiting their ability to “expense” (or deduct at the time of acquisition) their purchases of capital equipment.

The President’s desire to strip these targeted industries of the ability to deduct their capital purchases faster than current depreciation schedules allow is at odds with his own position on expensing. The President insisted that the 2010 tax deal to extend the Bush tax cuts include 100 percent expensing for all capital purchases for all businesses for one year. This latest jobs bill—which oil and jet tax hikes are supposed to help pay for—includes an extension of that expensing policy.

More troubling is the President’s apparent lack of understanding of the actual impact that his policies would have. He frames the jet tax hike as a hike on the owners of corporate jets, but the burden of his policy would fall on the workers that manufacture the jets. The tax hike would raise the cost of jets, which would reduce the demand for them. Reduced demand would ultimately result in fewer jobs for the blue-collar workers who manufacture the planes.

This is not just theory. In 1990, a 10 percent tax on luxury yachts went into effect. Congress passed the measure assuming that the rich buyers of yachts would pay the burden. But when the price of yachts rose, orders dried up and the yacht-building industry dried up as well. As The New York Times chronicled then, it was the blue-collar workers who lost their jobs and ended up bearing the pain of the tax.[4] The situation was dire enough that Congress repealed the devastating tax in 1993.

Stop Digging

In the Administration’s poorly crafted and contradictory jobs package, the American people get permanent tax hikes that would enlarge the federal government to offset the cost of temporary jobs policies that would not create any jobs. In the long run, the tax hikes in this plan are more likely to destroy more jobs than the jobs policies create.

Unfortunately, President Obama will not consider policies that would actually create jobs by reducing the high level of uncertainty that persists in the economy today. This would include doing things such as:

  • Fundamental revenue-neutral tax reform that repairs the tax base and lowers marginal tax rates to improve the incentives for income production;
  • Reducing the crushing amount of regulations coming from various federal government agencies;
  • Repealing Obamacare and its onerous regulations and taxes;
  • Repealing the Dodd–Frank financial reform legislation; and
  • Stopping incessant calls for higher taxes.

American workers do not need policies that will further inhibit job creation and dig deeper the already-deep jobs hole that the President’s policies have created.

Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation.

 

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