I'm serious.
On the 14th I wrote on the following Indiana Supreme Court Decision:
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.
The record shows:
- 911 was called during a verbal altercation. The statement was made that the defendant was throwing his own property within the apartment.
- No allegation was made that anything was thrown at the other occupant, nor that the defendant was destroying anyone else's property, nor that the defendant struck (battery) or threatened to strike (assault) any other person.
In other words, the original cause for the call did not allege an actual crime. It is not illegal to destroy your own property. It is not illegal to raise your voice. Absent a colorable threat to inflict bodily injury or destroy the property of another person there was no crime alleged to have been in progress.
The 911 call dispatch went out as a factual fallacy: a claim that a "domestic violence" was in progress. No such actual assault or violation of another's property rights was alleged by the caller.
Further, once the officers arrived the caller:
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.
The alleged "domestic violence victim" willingly interacted with the defendant and made no indication of an interest in police intervention. She displayed no evidence of a crime against her person and never alleged there had been one, either at the scene or during the 911 call.
These facts are in the court record and are not in dispute.
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.
The apartment is the "castle" of the defendant. He barred the doorway. The threshold is the demarcation between public and private space. Absent probable cause to believe a crime has been or is about to be committed, the police officers had no right of entry.
There was no probable cause.
Reed attempted to enter the apartment, and Barnes shoved him against the wall.
He used no more force than was necessary to resist the unlawful entry.
A struggle ensued, and the officers used a choke hold and a taser to subdue and arrest Barnes.
The officers escalated the level of force and committed an unlawful felonious assault and battery upon the defendant using a weapon (the taser), along with an illegal arrest.
The AG's office is now trying to wordsmith and get cute. Watch the outright lies from this individual:
"In supporting a rehearing, the State will continue to argue that Barnes' convictions should be upheld, but on more narrow grounds. We contend that under the circumstances, the police entry of Barnes' residence was legal: The officers responding to the 911 call sought to avoid leaving the alleged victim alone inside with the defendant after a confrontation outside.
The alleged "victim" failed to allege facts that, if true, would constitute probable cause that a crime had been committed. In addition there was both no physical evidence of a crime and the alleged "victim" willingly went back into the apartment with the defendant, intentionally eschewing discussion or sanctity with the police officers.
The police officers had no right to demand their entry upon the defendant's private property. What they "sought" is immaterial; their right to "seek" such is limited to that which is supported by probable cause that a crime either had been or was imminently about to be committed.
But there was no probable cause to believe that a crime had been or was about to be committed. The facts at bar preclude such a finding and in fact the defendant was neither arrested or charged with any offense related to domestic violence.
So while there is no right to commit battery against police,
The defendant had the common-law right and the statutory right under Indiana law to prevent an unlawful entry into his home. He did not need to close the door to assert that right. His blockading of the threshold was an active denial of access and meets the legal requirements of refusing entry.
Absent probable cause the act of forcibly entering the defendant's apartment was a crime. Using physical force, including a weapon, was a further crime. Indiana IC-35-42-2-9 appears to apply to a "choke hold" and is a class "D" felony. Battery with a taser is also a crime.
Indiana IC 35-41-3-2(b) states:
A person:
(1) is justified in using reasonable force, including deadly force, against another person; and
(2) does not have a duty to retreat;
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, curtilage, or occupied motor vehicle.
The entry into the residence absent probable cause was unlawful. There is no evidence in the record that establishes probable cause that an assault or battery either had or was about to take place. In point of fact the 911 call explicitly denied that either offense had occurred and the court record shows that the caller declined through her actions, despite proximity and opportunity, to interact with or seek sanctuary with said police officers when they arrived. In fact she intentionally and willingly returned to the apartment with the defendant!
I believe the individual has the right to shut the door, stand his ground and communicate with police without engaging in an altercation. In balancing the perils of domestic violence with respect for law enforcement, I will continue to advise our police clients to respect people's Fourth Amendment rights," Zoeller said.
You're lying Zoeller.
Barnes committed no crime; your officers, on the other hand, committed felonious assault upon him when they used the taser and placed him in a chokehold. His arrest was also unlawful.
Your prosecution of this case has led directly to the Indiana Supreme Court overturning the entirety of IC 35-41-3-2, the key statute permitting defense of person or property, if they are defending against an unlawful entry by a police officer.
Should this decision stand not only is the 4th Amendment destroyed in your state but in addition "open season" has now been declared upon the residents in your state, as criminals may now dress as if they are police officers and kick down doors. Having no way to ascertain whether the putative "police officers" really are police officers, and having their right to defend against unlawful entry by police officers removed from both the Constitution and Indiana Statutes by the jackbooted act of your Court system as a direct and proximate cause of your outrageous prosecution of this case your entire citizenry is now placed at enhanced risk of home invasion and other unlawful activity, both by criminals and police officers.
In addition the Sheriff of Newton County, neighboring Crown Point, has declared that he will conduct warrantless random house-to-house searches if he believes they would be "helpful", relying on the Indiana Supreme Court decision as his authority to do so.
Update: This has now been disavowed:
"I guarantee that random searches will not be done in Newton County, Ind., while I am in office," Prosecutor Jeff Drinski said Thursday.
and"I want the citizens of Newton County to rest assured that no member of the Newton County Sheriff's Office will enter the property of another person without first having a warrant or probable cause to do so," he said in the statement.
Ok - scratch Newton County. The rest stands.
All of this is unacceptable.
Mr. Barnes sentence must be commuted and his conviction expunged. He committed no offense; there was never an assertion of a criminal act in the original report nor was probable cause developed during the police response. His act of defense of his home was lawful as the entry was unlawful under your Statutes, he has a right to use reasonable force to defend against that entry and his use of force was proportionate and only in the degree necessary to repel the invasion. Your officers must be brought up on charges for the choke hold and taser use and tried by a jury to determine their guilt or innocence for their unlawful escalation of force in the incident. Barnes is entitled to his medical expenses and other compensation for the harm done to him by that taser discharge, as the record shows he was transported to the hospital.
The Newton County Sheriff must be removed for his statement of intent to violate the 4th Amendment of the United States, a direct and intentional violation of his oath of office which requires him to uphold not only Indiana State Law but the United States Constitution.
The Indiana Supreme Court decision must be reversed; if they will not immediately withdraw it then impeachment proceedings must be convened to remove the justices who wrote this opinion and your office must take an appeal on this matter directly to the United States Supreme Court on an emergency basis under both the 4th Amendment and Article 4 Section 4 of the United States Constitution, as your Court has, with malice aforethought and intent, violated both.
The United States Constitution is the Supreme Law of the Land. Indiana and other state laws that protect the right to defend against unlawful entry stand as valid, and unlawful entry does not become lawful without a warrant, hot pursuit or other legitimate exigent circumstance, simply because the police decide they want to "have a look around."
Probable cause requires reason to believe that a crime for which arrest is authorized under statute has been or is about to be committed.
Until the above all happens I call upon all persons to:
- Cease doing business with any firm domiciled in Indiana. The Indiana police departments are funded by tax revenues. No person should spend one dime in Indiana that could and will go to fund the jackbooted thugs in uniform found therein. There is no reason for any person who believes in the Constitution to fund the intentional and malicious violation of citizen rights, including the right to be secure in one's home as guaranteed by the 4th Amendment.
- Cease spending funds in Indiana. No vacations, no gasoline purchases or hotel stays in the state, no trips to the Indy 500. Nothing.
- Tell the businesses in Indiana you refuse to do business with why and that you will not be back until the Constitution is recognized in that state.
It's that simple. Not only is Zoeller's "statement" insufficient it is a further statement of intent to violate the Constitution and is flatly unacceptable.
Mr. Zoeller's phone number is 317-232-6310.
Governor Daniel's Office is 317-232-4567 and his fax number is 317-233-3378 if you'd like to express your opinion of this Attorney General's "press release."
