The Resistance Rises: Restoring the 'Castle Doctrine'by William Norman Grigg
Mar. 13, 2012
As the lower house of the Indiana State Legislature approved Senate Bill 1 on March 1, Representative Linda Lawson lamented that if it were passed the measure would signal that it’s "open season on law enforcement."
"You have men and women in your community who are willing to die for you, willing to die for your family," insisted Lawson, who – as a former police officer herself – spoke on behalf of 15,000 members of the police union. The only suitable way to display proper gratitude to the heroic paladins of public order, according to Lawson, is to protect their purported authority to invade your home and kill you with impunity – a privilege that would be undermined by SB 1.
The text of SB 1 states that its legislative purpose "is to protect citizens from unlawful entry into their homes by law enforcement officers or persons pretending to be law enforcement officers. Both citizens and law enforcement officers benefit from clear guidance about the parameters of lawful home entry, which will reduce the potential for violence and respect the privacy and property of citizens."
To that end, the bill recognizes that an individual "may use force … to prevent or terminate a law enforcement officer’s unlawful entry."
Although Lawson’s hunting metaphor was probably used because it was a convenient cliché, it contains a deeper significance that should not be ignored: Like the rest of the State’s exalted brotherhood of coercion, she assumes that the privacy of the individual’s home falls within the police officer’s natural habitat.
SB1 is not an innovation; it simply restores an explicit understanding of Indiana’s "castle doctrine," which was subverted last year in the Indiana State Supreme Court’s Barnes v. State ruling. As a wire service report observed at the time, that ruling effectively nullified the core protections contained in the Fourth Amendment and the equivalent provision in the Indiana constitution, as well as protections and immunities recognized by "common law dating back to the English Magna Carta of 1215." The 3–2 decision last May 12 held that Indiana residents have no right to obstruct unlawful police incursions into their homes.
As summarized by a legislative report last November, the incident that gave rise to the Barnes ruling occurred four years earlier, when police were summoned to the home of Richard Barnes and his wife by a 911 call reporting a domestic disturbance.
Barnes was in the parking lot arguing with his girlfriend when the police arrived. She had already thrown a duffel bag of his belongings outside the apartment, and told him to "take the rest of his stuff." As Barnes re-entered the apartment to do so, the police attempted to follow him inside. Barnes quite properly told the police to stay out, and enforced that lawful order by shoving a police officer who disobeyed.
Barnes was charged with Battery on a Police Officer, Resisting Law Enforcement, Disorderly Conduct, and Interfering with the Reporting of a Crime. The judge rejected a proposed jury instruction that Barnes had the right to resist unlawful police entry, and he was convicted on the second and third charges. The Court of Appeals ruled that the trial court committed a reversible error by rejecting that jury instruction. The state, frantic appealed to the Supreme Court, which upheld Barnes’s conviction.
"We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence," wrote Justice Steven David. "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."
Although the "risks" to a police officer in such an encounter are vanishingly small, we shouldn’t forget that at all times, and in all places, "officer safety" is the controlling priority. "It's not surprising that [the court] would say there's no right to beat the hell out of the officer," commented Professor Ivan Bodensteiner of Valparaiso University School of Law.
When a cop invades a home without legal authority, he is acting as a criminal, rather than a peace officer. SB 1 recognizes that principle by focusing on the act of illegal entry, rather than the identity of the aggressor.
The measure allows for forcible entry only when the officer has a valid warrant or legitimate probable cause; is in pursuit of a criminal suspect; or is acting with the consent or on the invitation of an adult resident. In other words: It would restore the status quo ante Barnes, which – in nullifying the Fourth Amendment – actually issued a hunting license to the police.
Last June, 71 members of the state legislature filed a petition with the Supreme Court protesting the Barnes decision and demanding that it be revisited. In September, the Court issued a ruling reiterating the claim that "the Castle Doctrine is not a defense to the crime of battery or other violent acts on a police officer," and recognizing that the state legislature had the authority to create statutory defenses against that supposed crime.
"Our laws, our statutes, our Constitution, and the value of our country [were built] on one premise, and that was to defend our citizens against the government –not defend our government against our citizens," noted State Senator Mike Young of Indianapolis, author of SB 1. "The [Barnes] ruling was a ruling that defended the government against the citizens."
Rep. Jud McMillin of Dearborn, who wrote the house version of the bill, added: "The distinction here is not between police officers and citizens. The distinction to be made here is between what is lawful and what is unlawful. In a society where we value our freedoms, we cannot have a bright-line test that tells people when they cannot exercise their freedoms."*
Such talk is intolerable to those employed by Indiana’s affiliate of the Homeland Security State, who insist that public policy must preserve the privileges of the powerful, rather that the rights of the individual.
"We believe people have the right to be secure in their homes," testified Hendricks County Sheriff Dave Galloway, uttering a sentence pregnant with the invalidating conjunction "but" – which, of course, followed immediately. "But the people who hear about this law are going to think it’s okay to kill a law enforcement officer. What you and I think is `reasonable’ isn’t the same as somebody high on meth. They’re going to shoot first, and ask questions later."
A far greater and more common danger is that posed by police officers who are high on the most lethal of all narcotics – power. The official position of the Indiana Fraternal Order of Police is that any use of coercive force by the State’s costumed enforcers is self-validating.
"Our position is there is never an opportunity to resist law enforcement," insisted Bill Owensby, president of the Indianapolis FOP. A great deal is revealed in Owensby’s choice of adverb: "Never" would apply to situations in which police officers commit unambiguous crimes against person and property.
Among the most prominent critics of SB 1 are rent-seeking activists and social engineers attached to the state’s domestic violence industry, who insist that the measure would impede the ability of police to respond to situations involving spousal abuse. Under the "no-resistance" doctrine, however, a police officer can commit domestic violence and then charge the victim with a crime if she resists. As was illustrated by the case of Jerry Cunningham, the former assistant chief of the Danville, Indiana Police Department, police and prosecutors are eager to extenuate crimes of domestic violence when perpetrated by a member of their hyper-violent sodality.
In October 2010, Cunningham – who was in the middle of a divorce – tracked his estranged wife to another man’s home. After tearing down the screen door, Cunningham slugged began what was described as an "altercation" in which he slapped his wife and slugged her paramour. A neighbor called 911 to report the incident, but made the mistake of identifying Cunningham as a police officer.
As a result, rather than being "cuffed and stuffed" by a SWAT team, Cunningham received the personal attention of Chief Keith Gill, who displayed unaccustomed daintiness in bringing in his underling. Rather than booking him immediately into the jail, Gill took Cunningham to his home "to find out what’s going on – call for help, call for some counseling," the Chief later recounted.
After being placed on paid vacation (which was hastily redefined as "medical leave" in order to keep him on the payroll after the police merit board ruled that he be suspended without pay), Cunningham faced three charges, including a felonious unlawful home entry. He was eventually found guilty only of one count of misdemeanor battery. He was given a 363-day suspended jail sentence and slapped with a fine of $1. He was also permitted to keep his job, albeit with a reduction in rank to patrolman – a position in which, under the Barnes ruling, he would be permitted to invade homes at will and shoot anyone who resists his criminal aggression.
Cunningham was not the only domestic abuser on the payroll of the Danville PD, nor was he even the most violent offender; that distinction belongs to Officer Chris Gill, the Chief’s son. According to his ex-wife Teresa, Officer Gill repeatedly beat her, throwing her against the wall of their home and even threatening to murder her in the presence of their child.
An investigation of Officer Gill conducted by Policeabuse.com – a group composed of retired police officers, private investigators, and court-qualified expert witnesses on police practices -- revealed a long history of official misconduct and criminal behavior by the gypsy cop. Gill had been cashiered by police departments in Paris and Atwood, Illinois, before his father made room for him on the Danville PD. Sheltered behind the impregnable barricade of nepotism, Gill continues to prowl the streets of Danville despite protection orders granted to his ex-wife and ex-in-laws – and a pending criminal trial on domestic abuse charges.
As her marriage with the officer disintegrated, Teresa Gill placed their daughter with her mother and father, Joyce and Robert Abernathy. In March 2010, while Officer Gill was still on the payroll of the Paris, Illinois PD, he used his position to remove the child from the Abertnathys’ home: He filed a false police report claiming that Teresa had threatened to kill that child. As he collected the child from her grandparents, Gill lifted his coat to display his gun and badge in a vulgar display of murderous intent.
During an April 2010 child visitation, Gill assaulted both Teresa and their son, which resulted in Teresa filing felony domestic battery charges against him.
Gill, who stands to lose his job if he is convicted, has repeatedly barraged his so-to-be-ex-wife and her parents with threats of lethal violence – while reveling in his sense of privilege as a member of the Brotherhood in Blue.
"I’m gonna do whatever it takes to f**k up your life," Gill promised in a June 22, 2010 text message to Teresa. "I am a cop, they won’t believe you. Have them drop [the charges] and I will stop… Nice try Whore."
During legislative hearings about the Barnes ruling, Leo Blackwell, President of Indiana’s Fraternal Order of Police insisted that "legal disputes about the right of entry should be decided by the courts, not on the doorstep." Under the supported by Blackwell’s police union, Gill could invade his estranged wife’s home without a warrant or probable cause – and then arrest and charge her with a crime if she proved to be insufficiently submissive. Sure, this would eventually get straightened out by the courts – assuming that Teresa and her children survive the initial encounter.
"The FOP will not compromise when it comes to officer safety," declared Blackwell in a recent legislative alert to union members. SB 1 "is terrible for law enforcement and could result in the loss of life (maybe yours) if passed." According to the union, it is "never" permissible to resist a police officer – even when the sacred cause of preserving "officer safety"means leaving a battered and terrorized woman entirely defenseless because the terrorist is carrying a badge.
* It should be acknowledged that Rep. McMillin's zeal for uniform application of the law has its limits: He withdrew a measure proposing drug tests for welfare recipients after it was amended to include legislators. For McMillin, apparently, some tax-consumers are more equal than others.
William Norman Grigg [send him mail] publishes the Pro Libertate blog and hosts the Pro Libertate radio program.
Copyright © 2012 William Norman Grigg