Supreme Court justice says ‘rule of law’ ruled decision in police-entry case

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Indiana Supreme Court Justice Steven David stirred up controversy with his first ruling from the bench. Indiana Supreme Court, Division of State Court Administration

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November 30, 2011

BY MAUREEN HAYDEN CNHI The News and Tribune Wed Nov 30, 2011, 07:54 PM EST

INDIANAPOLIS — Indiana Supreme Court Justice Steven David may have given legal observers a clue to his judicial philosophy when he was sworn in a year ago.

He’d been described by Republican Gov. Mitch Daniels, who appointed him, as a conservative unlikely to overturn legal applecarts.

But in his post-swearing-in speech, David said his loyalty to “the rule of law” would trump partisanship, politics and public pressure.

Turns out he had to prove it sooner than he thought. At seven months on the bench, David wrote a court opinion on a police-entry case that irked conservative legislators, triggered Statehouse protests and prompted death threats.

Recalling the controversy, David said some perspective helped: “I’ve been in much more dangerous situations.”

The 54-year-old jurist spent nearly three decades as a military lawyer, on active and reserve duty, before he was appointed to the state’s top court in October. Among his assignments: He was the chief defense attorney for the Guantanamo Bay detainees charged in the 9/11 terrorist attacks. His vigorous defense of their rights — and unbridled questioning of interrogation methods used against them — infuriated top officials in the Pentagon and the White House.

In his chambers on the third floor of the Statehouse are mementoes from his service in Iraq and Cuba — countries with histories of judges disposed of by political leaders with whom they disagreed. A collection of American flags is also visible, as are images of one of his heroes, Abraham Lincoln.

They reflect what’s shaped his view of the world: “I spent 28 years in the military to support and uphold the constitution of the United States of America against all enemies foreign and domestic,” David said. “Which means that I have to and firmly believe everyone is entitled to their opinion. That’s what makes this country great. You can’t do that in many other places.”

Still, David said he was caught off-guard by the intense reaction to the majority opinion he wrote in what’s become known as the Barnes case. In short, the court ruled the common-law argument that “a man’s home is his castle” wasn’t a defense for an Evansville man who attacked a police officer who entered the man’s home while responding to a 911 domestic violence call.

The 3-2 ruling of the five-member court provoked a flurry of reaction from opponents who said it violated constitutional rights against illegal searches and seizures. The intensity of the fury pushed some legislators to demand the court revisit the case. The justices agreed to do so; in September, the court affirmed David’s opinion in a 4-1 decision.

In hindsight, David said he wishes his opinion hadn’t been interpreted in such a sweeping fashion.

“The case is not about the Fourth Amendment, it’s not about the Second Amendment, it’s not about limitations on constitutional rights.” David said. Instead, he said, it was about this: “Whether someone should be able to say ‘I can get in a fight with a police officer who is trying to investigate a 911 call.’ ”

David has declined the offer of extra security after death threats rolled in after the decision, and he defends the peaceful protests that took place outside the Statehouse after the original ruling was issued. “If the Barnes case was about doing away with constitutional rights, then I would have been out there, too,” David said.

Joel Schumann, an Indiana University law professor who had initial reservations about the Barnes decision, said David has been true to his word: “He’s fulfilled what he said at his swearing-in,” Schumann said. “He’s been a thoughtful and independent voice on the court.”

Since the ruling, some lawmakers have been working on a bill that they say would allow Indiana residents to use reasonable force to resist police entry into their homes in certain situations. A domestic violence call — the kind that prompted the Barnes case — would be exempt.

David said he welcomes the debate to come, even if it gets contentious. “That’s the curse and the blessing of our system of democracy,” David said. “We don’t use hatchets and machetes, we don’t use bombs and bullets. We have a system and structure to handle our differences and I’m proud to be part of that process.”

Maureen Hayden is Statehouse bureau chief for CNHI’s Indiana newspapers. She can be reached at maureen.hayden@indianamediagroup.com.