Some two and a half years before the fatal shooting of Michael Brown by a Ferguson, Missouri Police Officer, the Indiana State Legislature enacted Indiana Code § 35-41-3-2 authorizing the use of force, including deadly force against public servants acting unlawfully against the persons or property of Indiana citizens. The statute, passed in March of 2012, is the first of its kind. It was passed in reaction to the Indiana Supreme Court's decision in Barnes v. State, which abolished the common law right to resist an unlawful arrest. Gun rights groups, most notably the National Rifle Association (NRA), responded in force, rallying against the abolition of the right to resist an unlawful arrest and exhorting the Indiana State Legislature to expand gun-related rights. The result is a statute that not only re-instates the common law right to resist an unlawful arrest, but also expands gun-related defensive rights to an unprecedented degree. This expansion includes the right to use deadly force against public servants in some situations that do not involve unlawful police violence. As a result, many commentators argue that Indiana Code § 35-41-3-2 incentivizes violence against public servants. A Reason to Resist posits that, although Indiana Code § 35-41-3-2 is problematic for several reasons, it nonetheless, finds compelling constitutional support in terms of its core principals. The Article also suggests that the use or threatened use of defensive force against rogue police officials may also serve as a check on the type of police misconduct prevalent in many minority communities; the type of police misconduct alleged most recently in the fatal shooting of teenager Michael Brown in Ferguson, Missouri, for example. Furthermore, state laws, like Indiana Code § 35-41-3-2, that authorize the use of force, including deadly force against public servants, find compelling support in the United States Supreme Court’s most recent interpretations of the Second Amendment in District of Columbia v. Heller and McDonald v. City of Chicago. This Article warns, however, that some aspects of the Heller and McDonald opinions, as evidenced by the Indiana statute, invite a dangerous degree of chaos into our system of "ordered liberty and . . . justice." In District of Columbia v. Heller, the Court determined that self-defense lies at the core of the Second Amendment. In McDonald v. City of Chicago, the Court established the Second Amendment right to bear arms as a fundamental right applicable to the states. In doing so, the Court relied almost exclusively on the fundamental nature of self-defense itself. The Court reasoned that since self-defense is a natural right, then it is a fundamental right. The Court further reasoned that self-defense lies at the core of the right to bear arms and that, as such, the right to bear arms is also a fundamental right applicable to the states. The Heller and McDonald opinions give cannon fire to gun rights groups to push for the "constitutionally mandated" expansion of defensive rights to a level that rivals or even exceeds the statutory defensive rights found in Indiana Code § 35-41-3-2. The Court, however, failed to address the scope and limits of the right to self-defense as well as whether it would extend to third party defense. The constitutional right to defend third parties from unlawful government force may have some redeeming social value. That is, the Supreme Court's decision in McDonald suggests that the primary reason why the Second Amendment was ratified was to ensure that citizens were armed to resist potential government tyranny. Said differently, the Second Amendment was ratified in part to address the exact brand of governmental tyranny alleged in the killing of unarmed Michael Brown in Ferguson, Missouri. So if the Second Amendment is to remain true to its roots and if it is indeed justified by its purpose, then the threat of civilian force or the use of such force in response to unlawful police violence and oppression, should also work to check police misconduct in minority communities. A Reason to Resist attempts to remedy the gap left by the Supreme Court's interpretation of the Second Amendment as well as illustrates the applicability of the Second Amendment to minority communities. In so doing, this Article offers a statutory model that secures a Second Amendment right to use force against public servants in defense of others and, thus, maintains a check on unlawful government aggression while limiting the circumstances under which defensive force may be used against police officials. Additionally, A Reason to Resist explores Indiana Code § 35-41-3-2 and other state laws permitting the use of defensive force against public servants. As such, it focuses on statutes and case law involving an intervener's use of deadly force against a public servant to defend an unrelated third-party. Heller and McDonald establish a fundamental right to defend oneself against the unlawful use of force by anyone, including public servants. However, neither the Court's decision in Heller nor McDonald address the situation where a third party uses force against a public servant in defense of a stranger. This Article, thus, proposes the concept of "defense-in-resistance" to describe the right to use deadly force in defense of a stranger. This concept of defense-in-resistance relies both on the self-defense component of the Second Amendment and the Amendment's implied right to rebel, in a manner consistent with the Supreme Court's interpretation of these issues.
A Reason to Resist: The Use of Deadly Force in Aiding Victims of Unlawful Police Aggression,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol52/iss3/6