Monday, May 23, 2011

Justice Steve David Usurps Legislative Authority

As public discussion and outrage increase over the Barnes v State of Indiana case decided by the Indiana Supreme Court on 12 May 2011 there seems to be as much inaccurate information as there is accurate with all peppered by opinion. I didn't write about this until I warned you about Supreme Court (in)Justice Steve David published on Friday 20 May 2011.

In that I wrote about my experiences with Steve David as the Boone Circuit Court Judge and my failed attempts to prevent his ascent to the Supreme Court although I had warned people about his totalitarian and activism disposition.

Today I examine more closely the ruling and specifically how he has usurped legislative authority.

I am a strong advocate of the rule of law. Although I often disagree with laws and find many to be repugnant to my sense of morals or simple logic I participate in the process. I vote in every election, I write letters to the editor, I provide testimony to state policy makers and bodies, I engage in lively discussions on FaceBook and elsewhere to rally others to act, and I write this blawg.

I revere our United States Constitution and Indiana Constitution and the powers they restrict government from engaging in and the manner in which powers are delegated. Much as a theologian holds the Bible or spouses may embrace and hold sacred their marriage I find solace in those finely crafted instruments.

The three branches of government should wield an equal amount of power and each be embodied with the power and authority to ensure that no other abuses or exceeds the powers specifically granted by the respective constitutions.

Legislators [The Legislative Branch] are to write the laws. The Governor or President [The Executive Branch] are the first line of defense in that each possesses the power to veto a law and are also given the discretion of enforcement. The Judges and Justices [The Judicial Branch] are entrusted with the responsibility of ensuring that the legislators and police have complied with our constitutions.

Additionally, there is the Prosecutor. Although an entity of the Executive the prosecutor does act in a quasi-judicial manner. In criminal matters he is cloaked with the sole authority as whether to pursue a charge brought by the police or one he initiates himself. It is not his mandate to seek a conviction, but rather, it is his duty to seek justice. He represents the people in a role as an advocate to seek a conviction but also to ensure restraint in that the people do not obtain a wrongful conviction. Thus, he is a mini-judge between the people and the defendant.

The Barnes v State decision arose from the arrest of Barnes after he resisted a police entry into his home after he retreated there following a conversation in a parking lot. The police had been called to Barnes' residence by his wife. When they arrived Barnes was walking away from the residence with some belonging. The wife then appear, tossed more of Barnes' belongings out, made some comments and went into the house. Barnes followed. This is when the police attempted entry.

At issue is whether Barnes had a right to resist an unlawful entry by the police.

Although Barnes' wife had appeared briefly and observed the police she did not summon them for further assistance at that time. The argument in favour of a warrantless entry is exigent circumstances. It is well-settled that police may enter upon reasonable belief that a person is in eminent danger or that evidence is likely to be destroyed before a warrant can be obtained.

The Court did not get to the issue of whether the entry by police was unlawful as Barnes contended. There is legitimate concerns from both sides of the issue as to what is the balancing test. Barnes wife appear outside as he was leaving and did not seek additional assistance by the police such as asking for his arrest or that they ensure that he does not return. But he did return to the residence which alters the dynamic of the situation. Could the conflict in the residence escalate to the point where one of the parties becomes endangered.

This issue was not address in the opinion because (in)Justice David determined that regardless of whether the entry by the police was lawful; "Because we decline to recognize the right to reasonably resist an unlawful police entry, we need not decide the legality of the officers‘ entry into Barnes‘s apartment."

That finding by the Court is not extremely disturbing from the standpoint of a judicial interpretation of constitutional or common law as both must be applied based upon fact sensitive issue and the intent of the constitutional provisions.

What is extremely appalling though is that Justice David usurps the authority of the legislature who specifically crafted language to allow citizens to use deadly force against an unlawful entry into their home.

I.C. 35-41-3-2 first adopted in 1976 and last amended in 2006 provides this protection under section (b) which reads:

A person:
        (1) is justified in using reasonable force, including deadly force, against another person; and
        (2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle.

This decision should have been decided much more narrowly consistent with constitutional protections and in-line with the particular circumstances of the case such as Justices Rucker and Dickson applied in their dissents. However, Indiana Attorney General Greg Zoeller sought an expanded and more broad application which (in)Justice David went beyond.

Knowing Steve David for over ten years and being one of the judges whom I have sued I was keenly aware of his judicial activism, abuse of power and propensity to support a totalitarian rule of law while using the bench for his personal gain.

What David has now done is giving special powers to a limited class of people based upon their employment status. In this opinion David made no distinction as to police acting in the scope of their employment or upon their cognizable duties and those acting in a personal capacity. Although the decision includes numerous references to the underlying action, being the entry into Barnes domicile in an attempt to place him under arrest the decision hinges upon the entry into the home not the arrest.

Therein (in)Justice David has now made such a broad ruling that by the status of being employed as a law enforcement officer, but not acting in such a capacity, a police officer may break into a home for whatever nefarious reason and it shall be unlawful to resist be it rape, robbery or a random search for evidence of a crime.

Even the countries we consider to be some of the most notorious human rights violators do not cloak their police with such privileges.

(in)Justice David MUST be removed from the Indiana Supreme Court. To help accomplish this I ask that you please attend the STAND UP for your Fourth Amendment rights rally at the Indiana State House on Wednesday 25 May 2011, Like the Remove Justice Steve H David in 2012 Facebook group, Vote NO to retain Justice David in the November 2012 election and tell all your friends about this or pass along this post.

If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.

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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.

©2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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