Contrary to the impression one might get from some recent headlines, a new Indiana self-defense law does not authorize Hoosiers to wantonly open fire on police officers.
The Week ran the headline "The Indiana law that lets citizens shoot cops."
The Russian cable news network site RT went with "Indiana legalizes shooting cops." Bloomberg News was only slightly less sensational with its headline: "NRA-Backed Law Spells Out When Indianans May Open Fire On Police."
Then there's the the San Francisco Chronicle's version: "Indiana law lets citizens shoot at police." The popular political gossip blog Wonkette asked, How were the National Rifle Association and Indiana's "law and order Republicans" able "to get cop-killing legalized?"
The headlines all refer to Indiana's Castle Doctrine law -- and more specifically, to a recent revision of it, which passed both chambers of the legislature by wide margins and was signed into law last week by Gov. Mitch Daniels.
Jeffersonville, Ind., police Sgt. Joseph Hubbard told Bloomberg News, "If I pull over a car and I walk up to it and the guy shoots me, he's going to say, 'Well, he was trying to illegally enter my property. Somebody is going get away with killing a cop because of this law."
Added Tim Downs, head of the state's largest police union: "It just puts a bounty on our heads."
Fortunately, the law does nothing of the kind.
The changes to the law resulted from a widely criticized Indiana State Supreme Court ruling, Barnes v. State, in May 2011. The situation that triggered the court case (an appeal of a criminal conviction) resulted from an 2007 incident in which police responded to a 911 call about possible domestic violence.
After Richard Barnes had a verbal altercation with police, his wife pleaded with him to let officers into their home. Barnes refused. The police entered anyway. Barnes responded by shoving an officer to prevent him from coming inside. Barnes was arrested, charged and convicted of battery on a police officer, disorderly conduct and resisting arrest. He appealed, arguing that because the officers' entry into his home was illegal, he was permitted to use force to prevent them from coming inside.
The Indiana Supreme Court could have simply ruled that as a result of the call, Barnes' state of mind and his wife's pleas provided exigent circumstances for police to enter the Barnes' home legally. Instead, the court went much further, finding that "there is no right to reasonably resist unlawful entry by police officers." The court even acknowledged that this unraveled hundreds of years of common law precedent.
The ruling effectively barred anyone accused of using force against a police officer, for any reason, from arguing self-defense or the defense of others at a trial. At the time, critics pointed out that with the ruling, a man who uses force against a police officer who is raping his wife would not be allowed to argue in court that he was defending his family. The battered spouse of a police officer who fends off her husband could in theory be arrested and, under the ruling, wouldn't be permitted to argue self-defense.
While those scenarios may seem far-fetched, a bad prosecutor sympathetic to a wayward officer could easily make them a reality, said Mark Rutherford, chairman of the Indiana Public Defender Commission. "The police organizations say those sorts of things would never happen," he said. "And you'd hope a prosecutor wouldn't bring a charge like that. But if a prosecutor did charge you, you wouldn't be allowed to try to convince a jury that you were defending yourself. And that's the problem."
The amendment this month to the 2006 Indiana statute, known as its Castle Doctrine law, corrects the problem. It does not give Hoosiers the right to shoot police officers; Indianapolis won't be the next Mogadishu.
The Castle Doctrine law says that if someone has entered or is attempting to enter your home without your consent, you're legally permitted to use a reasonable amount of force to expel the intruder from your residence. If you reasonably believe your life or members of your family are in danger, you can use lethal force. The revision to Indiana's law simply states that public servants aren't exempt from such treatment.
Rutherford pointed out that the word "reasonable" appears throughout the revision to the Indiana law. "That's important. The amount of force you use must be reasonable," he said. "So if a police officer pokes his head inside your screen door because he heard something suspicious, no, you don't now have free rein to shoot him."
Indiana residents must (a) reasonably believe the public servant is attempting to enter their home illegally and (b) use no more force than is reasonably necessary to dispel the threat to their lives or property.
So Hoosiers can't use any force if the public servant isn't a threat and can't use lethal force unless there's good reason to believe the intruding police officer presents an immediate and significant threat to the safety of those inside.
Moreover, an Indiana resident's mere assertion that he shot a police officer because he thought the cop had entered his home illegally and presented a threat doesn't necessarily get him off the hook. If a prosecutor thinks the homeowner acted unreasonably, he or she can still press charges. And if members of a jury then determine that that the homeowner's assessment of the threat wasn't reasonable, they can still convict him.
Additionally, the new amendment still bars a Castle Doctrine defense if the homeowner is in the act of committing or escaping from a crime, provoked a police officer into using force or should have known the police officer was acting legally.
To see what the amendment does, consider the case of Cory Maye, one I've written about for several years. In 2001, police in Prentiss, Miss., obtained a warrant to search both apartments of a duplex. Maye lived on one side. On the other side lived Jamie Smith, who was facing drug charges.
One night Cory Maye was asleep with his 18-month-old daughter. Maye claims he awoke to the sound of men attempting to break into his home. When the men went to the back of the house and kicked open the door to the bedroom where his daughter was sleeping, Maye shot and killed the first person to enter his home. Maye said when he realized the intruders were police, he immediately surrendered; there were bullets still left in his gun. The person Maye killed was Ron Jones, a Prentiss police officer.
Maye had no criminal record and wasn't a drug dealer; police found one burnt marijuana cigarette in Maye's apartment. At his trial, Maye was prevented from arguing he acted in defense of his daughter. He argued he had acted in self-defense but the jury nonetheless convicted him of capital murder and sentenced him to death.
The Mississippi Supreme Court eventually awarded Maye a new trial on the grounds that the trial judge improperly barred him from arguing that he was also defending his daughter that night. After that ruling, prosecutors allowed Maye to plead guilty to manslaughter. He was released from prison last summer.
If the raid on Maye's home had occurred in Indiana after last year's state Supreme Court ruling, Maye would have been barred from arguing to a jury that he had been defending himself or his daughter. The jury would hear only that he had killed a cop. The revision to the state law that Gov. Daniels signed last week merely permits someone in Maye's position to argue self-defense in front of a jury.
So why are Indiana's police officials so worried? Like any interest group, police organizations are designed to support policies that benefit their members. If you have a state court ruling that says citizens can never use force against police officers even when one flagrantly violates the law, it isn't difficult to see why police groups would aggressively oppose any legislation to override that ruling.
Just last week, a police union leader in Arkansas absurdly called for a federal criminal investigation of citizens who criticize police misconduct, claiming such actions threaten officer safety. And in April, a police union official in Philadelphia called for disbanding a citizen review board that investigates police misconduct, calling the board "a direct threat to public safety."
The fact that a police organization says a new policy will harm police officers or the public doesn't mean it is so.
The other concern police have expressed is that the new law will encourage citizens to take up arms against officers with search warrants.
But even this concern is unfounded. Any possible effect the new amendment might have on emboldening drug dealers to kill cops during drug raids is still likely to be offset by the reality that anyone who intentionally decides to take on a well-armed SWAT team isn't likely to live to see a courtroom. And if such a person is now permitted to argue self-defense in Indiana doesn't mean the argument will succeed.
Maye, who was allowed to argue self-defense and is about as sympathetic a defendant as there can be in such a case, was still convicted by a jury and sentenced to death. In all but the most egregious cases of misconduct, a jury's sympathies will still lie with the slain police officer.
The amendment's main effect on drug raid cases will be that if someone is by mistake considered a suspect -- and if in the confusion and volatility of the moment he mistakenly shoots and kills a police officer -- he'll now be permitted to argue in court that a reasonable person in the same position could easily have made the same mistake.
In seven years of reporting on paramilitary-style drug raids, I've reviewed cases where police officers have shot and killed innocent people after mistaking a blue cup or a glinting wristwatch for a gun. In nearly all of these situations the officers were cleared because prosecutors determined that given all the circumstances, the officers had made a reasonable error in judgment. Now in Indiana, the citizens on the receiving end of these raids will be given the same consideration.
"In the end, that's all this amendment does," Rutherford said. "It really just puts police officers on the same level as everyone else."