Indiana police fear state’s new ‘right to resist’ law

Gov. Mitch Daniels is warning Hoosiers that a new Indiana law meant to protect citizens from an illegal intrusion by police is no green light to resist law enforcement.

Police, though, fear it will lead to just that.

The law, passed by lawmakers who were outraged by a controversial Indiana Supreme Court decision, allows people to resist police, including with deadly force, but only if police are acting illegally.

Under the new law, people can resist if they reasonably think police are illegally entering their home or car and force is the only way to protect themselves or someone else from harm. Even then, there is no right to resist if the citizen was the aggressor or was committing a crime, and the citizen must first try to cool things down by withdrawing from the encounter with the police.

Sound confusing?

That is exactly what worries police.

William Owensby, president of Indianapolis Fraternal Order of Police Lodge 86, said the problem will be the public perception. He doubted that many people will take the time to read the new law and understand what they can and cannot do in a confrontation with police.

Tim Downs, president of the state Fraternal Order of Police, feared some people will hear only the “right to resist” part of the law and not all of the ifs, ands or buts explaining that that right applies only to the rare cases of a rogue officer.

“There’s an element of society out there that doesn’t have a lot of use for the police to begin with,” he said. “They’re going to view this as an avenue for them to go after us.”

Daniels, who signed Senate Enrolled Act 1 into law Tuesday evening, tried to address those concerns in a statement issued Wednesday.

“The right thing to do is cooperate with (police) in every way possible,” Daniels said. “This law is not an invitation to use violence or force against law enforcement officers. In fact, it restricts when an individual can use force, specifically deadly force, so don’t try anything.”

Daniels met with supporters and opponents of the new law, including Downs, and said he concluded that “contrary to some impressions, the bill strengthens the protection of Indiana law enforcement by narrowing the situations in which someone would be justified in using force against them.”

The new law, which takes effect immediately, “clarifies the current requirement that a person reasonably believe the law enforcement officer is acting unlawfully,” Daniels said, and adds a new requirement that the force “must be reasonably necessary to prevent serious bodily injury to the citizen.”

Unless the citizen is convinced that the officer acted unlawfully, “he cannot use any force of any kind.”

“In the real world,” Daniels said, “there will almost never be a situation in which these extremely narrow conditions are met.”

Still, the fears that some people may perceive the law as a license to defy police are strong enough that the Indiana State Police followed up Daniels’ statement with its own.

“This law may be misunderstood by the public,” State Police Capt. Dave Bursten said. “My biggest fear is a homeowner, in the heat of the moment, will think an officer is entering their home illegally, when in fact the officer has every legal right to enter the home. . . . The bottom line is rash decisions can have devastating, life-altering consequences.”

In fact, the Supreme Court case that led to the law, Barnes v. Indiana, involved a Vanderburgh County domestic violence complaint. The police there were acting legally, within the scope of their duties, when they responded and arrested a man when he shoved police as they entered an apartment.

In its 3-2 decision in May, the court more broadly discussed the issue of resisting police and found that “allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

That sparked outrage from conservatives and liberals who felt that it overturned centuries of common law that viewed a man’s home as his castle, as well as the U.S. Constitution’s Fourth Amendment protections against unreasonable search and seizure.

The court, facing death threats as well as calls by lawmakers and by Indiana Attorney General Greg Zoeller to rethink the case, issued a 4-1 opinion in September, clarifying that the Fourth Amendment protections remained.

“Our earlier opinion was not intended to, and did not, change that existing law about the right of people to be secure in their persons, houses and papers against unreasonable searches and seizures,” wrote Justice Steven David, who also had written the initial opinion.

State Rep. Jud McMillin, a Brookville Republican who was one of the bill’s chief sponsors, said he believed the fact that the original case involved police acting legally, while the opinion also discussed police acting illegally, started the confusion that persists.

He said the law tries to balance the needs of police and citizens.

Under the new law, he said, “before anybody uses any type of force against a law enforcement officer, they have to try to extricate themselves.”

“They have to try to get away,” he said. “They have to try to retreat. It’s designed to hopefully alleviate the problem of decisions made in the heat of the moment.”

Downs, the FOP president, said police will explore “every option” to change the law, including asking legislators to revisit this issue in future sessions.

“We are not giving it up, I’ll tell you that.”

From The Indianapolis Star.