Najam, J.
In Barnes v. State, 953 N.E.2d 473, 474-75 (Ind. 2011), our supreme court held on rehearing that “the Castle Doctrine is not a defense to the crime of battery or other violent acts on a police officer.” [Footnote omitted.] In so holding, the Barnes court noted that “[t]he General Assembly can and does create statutory defenses to the offenses it criminalizes, and the crime of battery against a police officer stands on no different ground. What the statutory defenses should be, if any, is in its hands.” Id. at 475.
In its legislative response to Barnes, the General Assembly found and declared that “it is the policy of this state to recognize the unique character of a citizen’s home and to ensure that a citizen feels secure in his or her own home against unlawful intrusion by another individual or a public servant.” Ind. Code § 35-41-3-2(a) (emphasis supplied). [Footnote omitted.]
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We first hold that the State presented sufficient evidence that the off-duty constable, Robert Webb, was engaged in the performance of his official duties. However, we also hold that, under the statute enacted by our legislature in response to Barnes, the Castle Doctrine is an affirmative defense to the crime of battery on a law enforcement officer when that officer has unlawfully entered the person’s dwelling. And we hold that, on the facts of this case, Cupello exercised reasonable force under Indiana Code Section 35-41-3-2(i)(2) to prevent or terminate an unlawful entry by a public servant into his home. Thus, we reverse Cupello’s conviction.
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The probative evidence and reasonable inferences supporting the judgment are undisputed and lead unerringly to the conclusion that Constable Webb unlawfully entered Cupello’s dwelling by placing his foot within the threshold of the apartment door without lawful justification. . . . .
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Here, as in Adkisson and Harper, Constable Webb did not have a warrant to enter Cupello’s apartment, nor does any exception to the warrant requirement apply. And while the officers in Adkisson and Harper had probable cause to conduct a warrantless arrest, here, Constable Webb lacked probable cause to invade Cupello’s residence in the first instance. [Footnote omitted.] Constable Webb had no lawful justification for breaching the threshold of Cupello’s apartment, and, in so doing, he was not lawfully engaged in the execution of his duties as an officer. See Adkisson, 728 N.E.2d at 177.
Thus, as a matter of law, Cupello was entitled to use reasonable force to terminate Constable Webb’s unlawful entry and to prevent further entry by Constable Webb into his home. See I.C. § 35-41-3-2(i)(2) To prevent entry into his home, Cupello used reasonable force when he closed the door. Given that Constable Webb had inserted his foot to prevent the door from closing, Cupello’s natural response was to persist in attempting to close the door, and, while several tries were required, his conduct to thwart the unlawful entry was not disproportionate to the entry itself.
Bradford, J., concurs.
Mathias, J., concurs with separate opinion:
I fully concur in the majority’s holding that Cupello exercised reasonable force under Indiana Code section 35-41-3-2(i)(2) to prevent or terminate Constable Webb’s unlawful entry into Cupello’s home.
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For the benefit of both law enforcement officers and citizens, the General Assembly should consider clarifying what easily visible and audible indicia are required to place a citizen on notice that he is dealing with an off-duty law enforcement officer who is, nevertheless, acting in his official, and not his private, capacity, as the legislature has already done in Indiana Code section 35-44.1-3-1(a)(3) (resisting law enforcement officers) and section 9-30-2-2 (when a law enforcement officer may make a traffic stop and issue citations). Such indicia might include wearing a standardized vest or uniform and/or displaying a badge and audibly notifying the citizen of his public authority.
Likewise, the General Assembly should consider the clearly intended and confusing appearance of private security personnel dressed in uniforms of the same color, and with identification patches that are the nearly the same, as those worn by sworn officers, as it has done with its strict limitation of blue and red emergency lighting on private vehicles. See Ind. Code § 9-21-7-10 (providing that a person in a non-emergency vehicle may not operate a vehicle with a lamp that displays a red, red and white, or red and blue signal). One need only drive in downtown Indianapolis during the afternoon rush hour to witness such private security personnel routinely stopping traffic with the legal right of way on busy public streets and highways for the benefit of private parking facility owners. These persons do this without any apparent statutory authority, [footnote omitted] and perhaps even commit an infraction when they do so. [Footnote omitted.]
Without such careful consideration and differentiation by the General Assembly, Hoosiers have a right to wonder precisely who has been invested with the public authority to regulate civil society, and to resent the instances where government has apparently delegated public authority to private security for purely private purposes and gains.
Subject to these additional public policy concerns, I fully concur in the majority’s decision.