VOL. 17 ISSUE NO. 20   |   MAY 18 – 24, 2011


Eroded liberties

Americans across the country are faced with their liberties being eroded by state legislatures, judges and those sworn to uphold the Constitution and the rule of law. Here are a couple examples:

Part I

REAL ID protested in Clearwater, Fla.

Although 25 states have passed resolutions or legislation to preclude participation in the REAL ID Act of 2005, which imposes federal standards for state-issued driver’s licenses and identification cards, Florida was not one of them.

Before a license or ID card may be issued under the REAL ID Act, the applicant must provide a photo ID or non-photo ID that includes the applicant’s full name and birth date; documentation of birth date; documentation of legal status and Social Security number; and documentation showing name and principal residence address.

The REAL ID Act also requires digital images of each of the required documents to be stored in each state department of motor vehicles database.

Florida’s law also subjects applicants to digital facial image capture (DFIC) for facial recognition identification.

Florida began issuing REAL ID compliant licenses and IDs, which it signifies with a gold star in the upper right hand corner of the card, in January 2010, although the federal government will continue to recognize current Florida licenses and IDs until Dec. 31, 2014 for individuals born after Dec. 1, 1964 and Dec. 1, 2017 for everyone else. 

At noon on May 17, Adrian Wyllie, chairman of the Florida Libertarian Party, planned to attempt to renew his license at the Department of Highway Safety and Motor Vehicles (DHSMV) in Clearwater without being subjected to what he says are unconstitutional federal requirements.

If that wasn’t possible, he stated he would surrender his license in protest of Florida’s compliance with the REAL ID Act, although he plans to continue driving.

Immediately after surrendering his license, Wyllie said he would contact the Pinellas County Sheriff’s Office to advise them he is driving without a license in violation of state law.
Wyllie is willing to be arrested for driving without a license, which he said would then give him standing in court to challenge the law.

According to Wyllie, the DHSMV cannot compel a person to produce the mandated documentation nor require applicants to be subjected to DFIC in order to operate a privately owned vehicle.

Wyllie contends the requirements force people to waive their Fourth Amendment rights.

And, because the REAL ID Act also states no person shall be recognized for any official federal government purpose without a compliant license or ID, Wyllie says it places people in a position of having to waive their Fourth Amendment rights in order to be recognized as a U.S. citizen.

Eroded liberties – Part II

Unlawful entry upheld by Indiana Supreme Court

On May 12, the Indiana Supreme Court ruled “there is no right to reasonably resist unlawful entry by police officers.”

After a jury convicted Richard Barnes of battery on a law enforcement officer, resisting law enforcement and disorderly conduct, Barnes appealed the ruling, asserting the trial court’s failure to advise the jury on the right to resist unlawful entry by police officers constituted reversible error and that the evidence was insufficient to sustain his convictions.

The case stems from a domestic dispute between Barnes and his wife Mary in 2007, as he was moving out of their apartment.

As Mary tried to call her sister, Barnes grabbed the phone out of her hand and threw it against the wall.

Mary called 911 and told the dispatcher Barnes was throwing things around the apartment but had not struck her.

The call was dispatched as a “domestic violence in progress.”

Officer Lenny Reed, the first officer to respond, saw a man, whom he later learned was Barnes, leaving the apartment with a bag and began questioning him in the parking lot.
Barnes informed Reed he was leaving and Reed was not needed.

Officer Jason Henry then arrived at the scene and observed Barnes being “very agitated and was yelling.”

Reed warned Barnes if he didn’t lower his voice he would be arrested for disorderly conduct.
Meanwhile Mary came out to the parking lot, threw a duffle bag in Barnes’ direction, told him to get the rest of his stuff and returned to the apartment.

Reed and Henry followed Barnes back to the apartment.

Barnes followed Mary into the apartment and then blocked the doorway. Barnes told the officers they could not enter the apartment and denied their requests to enter and investigate.

Reed attempted to enter the apartment anyway and Barnes shoved him against the wall.
A struggle ensued resulting in Barnes being placed in a choke hold and Tasered. Barnes suffered an adverse reaction to the Taser and was taken to the hospital.

During the trial, Barnes submitted a jury instruction on the right of a citizen to reasonably resist unlawful entry into the citizen’s home.

The trial court refused Barnes’ instruction and did not otherwise instruct the jury on the right to reasonably resist.

Barnes’ jury instruction stated: “When an arrest is attempted by means of a forceful and unlawful entry into a citizen’s home, such entry represents the use of excessive force, and the arrest cannot be considered peaceable. Therefore, a citizen has the right to reasonably resist the unlawful entry.

The jury found Barnes guilty on all three charges.

On appeal, the Court of Appeals determined the trial court’s refusal of Barnes’ tendered jury instruction was not harmless error and found the evidence insufficient to sustain the disorderly conduct conviction. The Court of Appeals ordered a new trial on the battery and resisting charges.

The Indiana Supreme Court granted transfer.

Barnes argued his jury instruction should have been given because it was a correct statement of a viable legal defense supported by the facts and because the defense was not covered by the other instructions, while the Indiana Supreme Court was faced, for the first time, with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers.

The Indiana Supreme Court concluded public policy disfavors any such right and held the trial court’s refusal to give Barnes' tendered instruction to the jury was not error.

The opinion written by Justice Steven H. David stated, “We believe that a right to resist an unlawful entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means available at common law for redress against unlawful police action.”

David went on to say, “In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as part of that resistance.”

The court affirmed Barnes’ conviction and sentence with Chief Justice Randall T. Shepard and Justice Frank Sullivan, Jr. concurring.

Justices Brent E. Dickson and Robert D. Rucker each dissented with separate opinions.
Dickson wrote, “In my view, the wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad … It would have been preferable, in my view, for the court today to have taken a more narrow approach, construing the right to resist unlawful police entry, which extends only to reasonable resistance, by deeming unreasonable a person’s resistance to police entry in the course of investigating reports of domestic violence. Such a formulation would have been more appropriate for the facts presented and more consistent with principles of judicial restraint.”

Dickson concluded such a more cautious revision of the common law would have left in place the historic right of people to reasonably resist unlawful police entry into their dwellings.

Rucker began his dissenting opinion by stating, “The majority made a respectable case supporting the proposition that the common law rule entitling a person to resist an unlawful arrest is outmoded in our modern society.”

However, he pointed out, the common law rule supporting a citizen’s right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the U.S. Constitution and stated, “There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.”

Rucker stated, “At issue in this case is not whether Barnes had the right to resist unlawful police entry into his home – a position the state does not even contest – but rather whether the entry was illegal in the first place, and if so, whether and to what extent Barnes could resist entry without committing battery upon the officer.”

Rucker viewed the majority’s ruling as sweeping with too broad a brush “by essentially telling Indiana citizens that government agents may now enter their homes illegally – that is, without the necessity of a warrant, consent, or exigent circumstances. And that their sole remedy is to seek refuge in the civil arena.”

He said, “I disagree and therefore respectfully dissent.”

Dickson concurred.

On Tuesday, Barnes’ Attorney Erin L. Berger told Sonoran News she will file a petition for a rehearing, arguing the court’s ruling was too broad. If declined, she will petition the U.S. Supreme Court for a writ of certiorari.

Berger called the ruling a step backward and said we need to preserve our individual rights as granted by the Bill of Rights and the U.S. Constitution.

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