Flag of Indiana. Note the torch of liberty. The new Indiana law recalls the ideals of this flag. Flag of Indiana. Note the torch of liberty. The new Indiana law recalls the ideals of this flag.

Indiana law, Castle Doctrine, and common sense

Last spring, Indiana passed a new law (Senate Enrolled Act 1) that breaks new ground for the Castle Doctrine. When Governor Mitch Daniels signed this new Indiana law, not many people heard about it. They are hearing about it now. The new Indiana law gives ordinary citizens a right they never had before. Now a person may shoot a police officer who exceeds his authority. An excitable police union steward fears that Hoosiers will declare open season on the police. A little common sense, and plain reading of the Indiana law, shows that this should not happen.

What the Indiana law says

Before Act 1, Indiana already had the “Castle Doctrine” as part of its criminal laws. That Doctrine says that any person under a deadly attack may counterattack, even with deadly force, inside his home. In some States, a person’s “castle” includes his workplace or his car. Indiana law, since 2006, goes further: a person under deadly attack anywhere he goes may counterattack with deadly force if he has to, to save his own life or the life of a third person. A person can also resist with deadly force any attack on his house, the land around it, or his car (while he is in it).

Act 1 goes further still. Before it, “public servants” could attack people with impunity. A judge actually said so in a memorable case (Barnes v. Indiana, cause #82002-0808-CM-759, Indiana Supreme Court). Richard Barnes was beating his wife, or so the police believed. They barged in. At trial, he argued that the police had no right to barge in. The Indiana Supreme Court eventually said that a civilian had

no right to reasonably resist unlawful entry by police officers.

Several Indiana senators took exception to that in a friend-of-the-court brief. They wanted the Court to re-hear the case. The court said no. Hence Act 1.

Now, any public servant who is not merely “doing his duty,” or who exceeds his lawful duty and authority, may face the same kind of deadly counterattack that any ordinary burglar, robber, or assailant would. That includes a police officer kicking in a door (or shooting out a lock) and barging in, guns drawn or blazing, without a warrant. But this would not apply to someone:

  • Doing something criminal,
  • Running away after having done something criminal,
  • Forcing the officer to defend himself, or
  • Who knows, or should know, that the officer has a warrant and is doing no more than his sworn duty.

What the Indiana law does not say

Flag of Indiana. Note the torch of liberty. The new Indiana law recalls the ideals of this flag.
Flag of Indiana. The torch with the stars around it stands for liberty.

The new Indiana law does not make open season on police officers. Sadly, many police officers don’t understand or won’t admit this. Sergeant Joe Hubbard of the police in Jeffersonville, IN, says,

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.

No, Sergeant Hubbard. If you read the law more carefully, you’ll note that before that driver can shoot you, he must reasonably believe that you are doing more than giving him a speeding ticket.

In fact, cops can, and often do, attack people who haven’t provoked them. In one Ohio case last year, a cop threatened to kill someone at a traffic stop. That someone had a permit to carry a concealed gun. Anyone carrying a concealed weapon in Ohio must tell any officer who stops them that he has one. This person tried to tell the cop about his gun, but the cop interrupted him and would not let him talk.

F___ing talking to me with a G_dd___d gun! You want me to pull mine and stick it to your head? … I tell you what I should have done. As soon as I saw your gun I should have taken two steps back, pulled my Glock 40 and put ten bullets in your ___ and let you drop. And I wouldn’t have lost any sleep!

Even worse was the rumor that someone pretending to be a cop was stopping people on the highway, robbing them, and killing them. Now, under Act 1, anyone facing that kind of attack, or tirade, could protect himself, or someone else.

Common sense rules

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A little common sense will remind everyone that:

  • Cops are people, too, and are not perfect.
  • Cops do bad things sometimes.

More than that, the Fourth Amendment to the Constitution protects people, as well as their property, from “unreasonable searches and seizures.”

Note that the law still does not protect anyone doing something criminal, or trying to run away from that. And any court will know the kind of exigent circumstances will let an officer break into a home anyway. If someone inside is screaming for help, anyone outside can figure out that maybe someone is hurting or trying to kill that person (or someone else). The new Indiana law will not stop an officer from breaking in to offer that kind of help. But it will let a homeowner defend himself against a SWAT team breaking into the wrong house. That happens, too, and sometimes innocent people die that way.

Next steps

The new Indiana law does nothing more than say that “public servants” have to obey the law, too. If they break it, someone who isn’t a public servant can still defend himself.

A law like this is only the first step. The next step is to ask whether our police already act too much like soldiers in battle. Some argue that a free people shouldn’t even have “police” as we know them today. Others say that police officers have started acting too much like soldiers recently. One thing a free person can’t argue with: when the police forget that they are part of the community, they’ll start acting like an occupying army. The new Indiana law will check this. Other States should copy that law.

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

constitutional law, judiciary, liberty


Terry A. Hurlbut

Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

Comments (13)

  • “But it will let a homeowner defend himself against a SWAT team breaking into the wrong house.”

    Great in principle: not so hot in practice, unfortunately. If a SWAT team breaks into your house by mistake you should kneel down and put your hands on your head, let them cuff you then explain it at the station and send them a bill for your windows. If you shoot at them you’re simply going to die.

    • Totally with you on this one, Fergus. Armed police invading the wrong home is terrible, but when the person they think they’re after is someone they consider armed and dangerous, the homeowner confronting the police with a weapon just reinforces the mistaken assumption and escalates hostilities.

      What’s interesting is the potential convergence of this policy as a conservative right, combined with CNaV’s approval of the tactics used by Sheriff Joe Arpaio’s officers. When you have law enforcement entering citizen’s homes or pulling them over for traffic stops just because they fit an assumed profile of an illegal alien, giving them the right to armed resistance is going to lead to tragedy.

      In the meantime, I’ll have to read up some more about this Indiana law and what prompted it.

      • Pardon me while I clean my console after your comment made me spray my screen with ice water.

        How can you compare an examination of public records, or records that ought to be public, to breaking down someone’s door and barging in, guns drawn (and sometimes blazing)?

        And if you’re talking about illegal aliens, then your real objection can only be to immigration law, and to anything that stops any person, citizen or non=-citizen, from voting.

        Probable cause, Dinsdale. Probable cause, everyone.

        • “Probable cause, Dinsdale. Probable cause, everyone.”

          Brings to mind some words I recently read:

          “A little common sense will remind everyone that:

          Cops are people, too, and are not perfect.
          Cops do bad things sometimes.
          More than that, the Fourth Amendment to the Constitution protects people, as well as their property, from “unreasonable searches and seizures.”

          Now if you look at the Federal complaint against Arpaio, page 5, item 22, you will find several alleged examples of the behavior you refer to yourself. More to the point, look at items 28-31 on pp. 6 and 7. “Driving while Latino” is not probable cause, and Latino citizens should not be assumed to be illegal by default based on race.

          Regarding the Indiana law, items 62 and 63 in the complaint relate to incidents happening with drivers being challenged and threatened in their cars without reasonable cause to justify the actions, and item 67 describes the specific wrongful-entry incident I was thinking of in the post above.

          These charges still need to be proven in a court of law, but let’s not deny that there’s going to be evidence presented to back these allegations up, regardless of how the court hearings go.

          Bottom line is that it’s pretty ironic that you’re approving a law that would be more useful to Hispanic U.S. citizens living in Maricopa County, AZ than to anyone in Indiana. Since you approve of Arpaio and his policies, though, the irony is lost.

          Here’s a copy of the complaint for anyone to reference themselves:

          http://www.tucsonnewsnow.com/link/560109/pdf-complaint-against-joe-arpaio

  • So if a cop pulls over a car on a deserted road, and the driver shoots him, he can claim that the cop was threatening him without anyone being able to say he was or was not and he will get away with it.

    Cops should not be above the law, but you shouldnt have the right to kill them or anyone else unless it is in self defense, and presuming the force you use is not excessive.

  • Wo, I’m a little shocked — for the first time, I agree with you — yes, there are times when a private citizen might be justified in using force against a law enforcement officer.

    However, I’m going to ask this — let’s say a liberal politician had once acted as an attorney for someone accused to killing a police officer and was arguing it was justified. Or the liberal politician had introduced a law like the one above. Or written about it academically. Or for that matter, was overheard remarking about it.

    Can you honestly say that you nad the rest of the right-wing blogosphere would not be up in arms about it?

    • As you can see, if you play the video that I embedded in the article, everything would depend on the specific circumstances of the case. If you read the new Indiana law carefully, it does not protect those who are doing something criminal, or who have just done it and are now running away from the scene. So it does not protect bank robbers from an “attack” on the “getaway car.”

      That’s the kind of case that most liberal lawyers would take.

      In the kind of case in that video, I expect your liberal lawyer to take the side of the cop, not of the target. Why? Because you liberals don’t want ordinary law-abiding citizens to carry guns, that’s why. We ordinary law-abiding citizens have the things that typical liberals’ clients want to seize as loot.

  • You’ve focused on my first example, and completely missed my point. I’ll make it explicit.

    Let’s say Barack Obama proposed such a law. Would you endorse it, or would you immediately begin drafting an article headlined something like “Obama Declares Open Season on Police!”?

    (Oh, and yes, I know, such laws would be more of a state, not a Federal matter, and really wouldn’t be under the President’s purview. Put that aside.)

    • If Obama were foolish enough, from the point of view of his allies and his programs, to propose a law that does what the new Indiana law does, I would encourage my two Senators, and my Representatives, to vote for this and get it on his desk Alpha-Sierra-Alpha-Pappa, if not Romeo-Foxtrot-November, before BHO realized what an insane thing he was doing (again from his POV) and changed his mind!

      • I’ll take your word for it that would be your response, but you darn well know as well as I do that the vast majority of the American Right would be shrieking “open season on police!”

        • Not after a number of patriotic semi-pro journalists, including me, tell them that the police are not necessarily their friends any longer. Certainly not after they play that video of the out-of-control LEO in Ohio.

          Add this to it: the Department of Homeland Security has put in writing that they fear what you call “The American Right,” and want local police to fear them, too.

          This isn’t Jack Webb’s Los Angeles Police Department, the Department of television shows like Dragnet and Adam-12 and Emergency. Nor the larger America, either. Have you forgotten that Obama wanted to have a civilian security force at least as powerful as the United States Army? Have you any idea what he’s talking about? I’ll tell you: right now, Special Weapons and Tactical squads in major cities are the closest things we have to the kind of paramilitary police force that Obama is talking about. Now imagine a Federal SWAT Force. Ask yourself why DHS ordered 4.5 million rounds of hollow-point ammunition. I think the eventual name for that force will be Internal Security Force. Which is English for Schutzstaffel. Now do you get it?

          • “Not after a number of patriotic semi-pro journalists, including me, tell them that the police are not necessarily their friends any longer.”

            Wow. Take an isolated incident of police abuse here and there, and declare that “the police are not necessarily their friends any longer” despite the honorable service of the VASTt majority. Maybe you should reprint this on the next 9/11 anniversary as your tribute to every one of the men and women who rushed into those buildings, putting the welfare of strangers above their own.

            And police departments were never like Jack Webb’s fictional L.A. squad because it was just that – fictional. This isn’t the first time that you’ve treated the differences between present reality and nostalgic television as if the latter was reality, and it undermines the credibility of any point you’re trying to make.

  • I had a cop friend tell me once that about 25% of the cops he knew were cops BECAUSE it allowed them to push around and abuse people while using the badge as a basis for bullying. I believe it after seeing this video. This guy has a serious psychological problem and needs help….and hopefully after he has been forcefully removed from the police force, he’ll get it.

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