"Get out of my house"

[SemperFiUSMC]

No, that is not what the law requires.

Wow. That provided value. Thank you for your input.

 

[Joe Williams]

Wow. That provided value. Thank you for your input.

The law has been posted repeatedly on this site, and even in this thread. what is utterly lacking in value is posting incorrect information, which is what you did.

 

[Joe Williams]

double tap

 

[RichardR]

No, that is not what the law requires.

Yea there still seems to be some confusion with regards to the use of deadly force in self-defense & the use of deadly force to prevent or terminate unlawful entry.

I really don't want to get into that debate again though, if anyone is still confused just re-read this thread, it's been covered ad nauseam.

 

[SemperFiUSMC]

The law has been posted repeatedly on this site, and even in this thread. what is utterly lacking in value is posting incorrect information, which is what you did.

Yeah, I know what the law says. I learned to read the words in the law in grade school.

I also know how to interpret laws. I learned how to do that in another school I went to, one where we specifically learned the difference between what is written and what it means, what it says and what is required to meet each element, how to apply case law, you know, all the things you don't get when you're just a sea lawyer that can read the words.

The only objections I've seen to my position are from and by people that haven't expressed a particular knowledge of the law, just the ability to use google to find a single relevant statute and post it as authoritative, or those that can read the words and tell you what it means to them.

In any event, carry on.

 

[RichardR]

where we specifically learned the difference between what is written and what it means

Ok I really didn't want to get into this again but maybe I didn't explain it as well as I could have earlier in the thread so I'll give it one more go..

The whole reason the "to prevent or terminate unlawful entry" was put into the statute was to remove the whole "in fear of" requirement of the self-defense portion of the statute for a homeowner defending their own home.

Self-defense is what is known as an "affirmative defense" ie; the defendant admits to shooting & killing another person (which is a criminal act) but claims it was justified & as such the burden of proof is on the defendant.

I hope everyone followed that closely because it is important.

The inclusion of "to prevent or terminate an unlawful entry" was intended to remove the burden of proof from the homeowner from having to prove that they were "in fear of" in order to avoid criminal prosecution for defending themselves in their own homes, instead that "in fear of" is presumed.

That presumption is a very important distinction, legally speaking & it takes the burden of proof off of the homeowner & places it on the State.

So now in order for the State to prosecute a homeowner they (the State) has to prove beyond a reasonable doubt that the homeowner was not "in fear of" & was "unreasonable" in their use of that deadly force.

 

[SavageEagle]

I know I shouldn't, but what the hell.

The law requires only that I be able to articulate a fear for my life. I'll spell out that fear in about 20 seconds. The law does not require I give any warning or give an intruder any time to turn and face me. Morality dictates that I protect my family, not give an intruder a chance to see the error of their ways and give them an opportunity to kill me. Survival requires that I safely eliminate all threats, known and unknown, to my life. As far as I am concerned anyone who breaks into my home committed suicide as soon as they crossed the threshold. No deposit, no returns.

<snip>

No worries, I actually read all that.

Being a Marine I would have considered you a God fearing man. What you describe here is not that. Hesitation kills... on the battlefield. But if you got some guy in your home that's not suppose to be there, but he sees you and tries to surrender and you shoot him, that's murder, not self-defense. It would be wrong on the battlefield and it's wrong in your home.

I realize you are looking through the eyes of a Marine. I respect that. I'm not saying I think less of you for your choice here either. However, I think it's wrong that you would shoot without question, without circumstance, and without fear of the consequences.

However, we all live our lives to the best of our ability. I'm a man of chances. God has given me chance after chance in this life when I should be a corpse. I will give that home invader a chance. One chance. I should carry bear spray because I don't WANT to take another man's life? Well, that's your opinion. Just because I don't WANT to doesn't mean I won't.

A home intruder doesn't immediately pose a threat to me with a handful of my possessions. He does if he's holding a weapon though. Then he will not get a second chance. But an unarmed man will.

 

[Prometheus]

a law professor once told me that a dead man tells no tales, and if someone comes in your house, shoot him. if that man does not have a weapon, kindly lend him one.

Maybe in ILL but why in Indiana? The BG doesn't need to have a gun in order for you to be "in fear of my life".

Take a lesson from one of the many LEO's who have shot a kid for hold a basket ball, or for taking out their wallet as requested...

Repeat after me: "I was in fear for my life" and shut up.

Remember that dog from the warner brothers cartoons about 20-25 years ago "duh, which way'd he go george? which way'd he go?" Thats how most LEO's sound when they say it... should work equally well for non-LEO's as well.

I'm not planting anything and I don't think anyone else should either.

 

[SemperFiUSMC]

Ok I really didn't want to get into this again but maybe I didn't explain it as well as I could have earlier in the thread so I'll give it one more go..

The whole reason the "to prevent or terminate unlawful entry" was put into the statute was to remove the whole "in fear of" requirement of the self-defense portion of the statute for a homeowner defending their own home.

Self-defense is what is known as an "affirmative defense" ie; the defendant admits to shooting & killing another person (which is a criminal act) but claims it was justified & as such the burden of proof is on the defendant.

I hope everyone followed that closely because it is important.

The inclusion of "to prevent or terminate an unlawful entry" was intended to remove the burden of proof from the homeowner from having to prove that they were "in fear of" in order to avoid criminal prosecution for defending themselves in their own homes, instead that "in fear of" is presumed.

That presumption is a very important distinction, legally speaking & it takes the burden of proof off of the homeowner & places it on the State.

So now in order for the State to prosecute a homeowner they (the State) has to prove beyond a reasonable doubt that the homeowner was not "in fear of" & was "unreasonable" in their use of that deadly force.

Not entirely true. A person may use "reasonable force, including deadly force" to prevent or terminate an unlawful entry. Deadly force is not necessarily reasonable force. You may still be charged for terminating someone inside your home. You do not have a duty to retreat. You still may need to be able to articulate WHY deadly force was reasonable given the circumstances of the situation as you believed them to be at the time.

Remember, right doesn't mean innocent. Just sayin.

The State always has the burden of proving a crime was committed.

No worries, I actually read all that.

Being a Marine I would have considered you a God fearing man. What you describe here is not that. Hesitation kills... on the battlefield. But if you got some guy in your home that's not suppose to be there, but he sees you and tries to surrender and you shoot him, that's murder, not self-defense. It would be wrong on the battlefield and it's wrong in your home.

I realize you are looking through the eyes of a Marine. I respect that. I'm not saying I think less of you for your choice here either. However, I think it's wrong that you would shoot without question, without circumstance, and without fear of the consequences.

However, we all live our lives to the best of our ability. I'm a man of chances. God has given me chance after chance in this life when I should be a corpse. I will give that home invader a chance. One chance. I should carry bear spray because I don't WANT to take another man's life? Well, that's your opinion. Just because I don't WANT to doesn't mean I won't.

A home intruder doesn't immediately pose a threat to me with a handful of my possessions. He does if he's holding a weapon though. Then he will not get a second chance. But an unarmed man will.

I know it would be a matter of minutes before I was a murderer.

There is one part of your response I take exception to. "However, I think it's wrong that you would shoot without question, without circumstance, and without fear of the consequences." Without question? I need only consider one question. Is this person supposed to be in my house? No, he is an intruder. It is that single answer that is relevant, not further questions. Without circumstance? How many? How armed? Do they know I'm there? Do they know where my family are? Have they gotten into my gunsafe? Why didn't my dogs chase them off? Are they here intentionally? Interesting questions all, but again irrelevent. He is an intruder in my home. His mere presence is a threat to my family. If there are more, I will find them too. Without fear of consequences? I think this is pivot point between our positions. The consequences if I do not act are the death of me and my family. That is the only consequence I am concerned with at that time. I'll worry about any other consequences if I survive that one.

I am a God fearing man. I am also an instrument of His will. My view on the issue is known. I respect your position even though I don't agree with it, as you've said you do mine. It's a beautiful world where two people can disagree but remain friendly.

I pray that you never find yourself in a situation where you need to give anyone that chance. I hope that if you do you don't find yourself wishing to have the opportunity to take it back.

 

[RichardR]

Not entirely true. A person may use "reasonable force, including deadly force" to prevent or terminate an unlawful entry. Deadly force is not necessarily reasonable force.

I give up.

The statute specifically says deadly force is reasonable when ... it ... is... used... to... prevent... or... terminate... an... unlawful... entry...

I am not sure why so many people are having trouble understanding this extremely simple concept.

 

[finity]

Don't ever confuse action and outcome in a stressful situation. As long as you can justify your actions (not the outcome) first and foremost to yourself, then potentially to a jury, you've done the right thing.

Exactly.

No, that is not what the law requires.

You are 100% correct. It only requires that your actions can be justified as being objectively reasonable taking into account all circumstances known by you.

Not entirely true. A person may use "reasonable force, including deadly force" to prevent or terminate an unlawful entry. Deadly force is not necessarily reasonable force. You may still be charged for terminating someone inside your home. You do not have a duty to retreat. You still may need to be able to articulate WHY deadly force was reasonable given the circumstances of the situation as you believed them to be at the time.

Remember, right doesn't mean innocent. Just sayin.

Yes, yes, yes!!! By jove I think he's got it!!

The State always has the burden of proving a crime was committed.

True...sort of.

The only thing here I disagree with is "what do they have to prove?"

If you kill someone (in your house or otherwise) & you say nothing the state has to prove a murder was committed & that you did it.

If you use self-defense as your defense against the crime then the state no longer has to prove who did it. You've already admitted that you did it. They now just have to prove that it wasn't, in fact, "self-defense".

They still have a burden of proof, but what they have to prove has changed.

 

[RichardR]

If you use self-defense as your defense against the crime then the state no longer has to prove who did it. You've already admitted that you did it. They now just have to prove that it wasn't, in fact, "self-defense".

They still have a burden of proof, but what they have to prove has changed.

That is incorrect, with an affirmative defense such as self-defense the burden of proof is on the defendant.

 

[Keith_Indy]

So how much would it be to put one of you lawyers on retainer? Never know when one might need a good lawyer well versed in the laws of self defense.

 

[Militant Mind]

I had a State Trooper that lived next to me for about 10 years before I moved across town. When I asked him about this subject he said that basically, in Indiana, if you catch someone in your home that is uninvited (broke in,unlawful entry,ect.) you could use deadly force and come out clean. He told me that they could break your window open, jump in, and as soon as their feet touched the ground you could shoot them in the head and claim self defense/Castle Doctrine. He could be wrong, as many LEO's are, but I've heard this same tune from a few other officer's and lawyer's as well.

 

[finity]

That is incorrect, with an affirmative defense such as self-defense the burden of proof is on the defendant.

Indeed.

You must provide some evidence that self-defense is a reasonable claim. Once you have done so the state now has to prove it isn't.

Here is a discussion from a case from 2007:

http://www.in.gov/judiciary/opinions/pdf/10310706jgb.pdf

I. Self-Defense Claim ​

Rodriguez first claims that he "is not guilty of any crime" because the evidence established that he acted in self-defense. Specifically, Rodriguez contends that the evidence supported the reasonable inference that "the use of deadly force was necessary to protect himself and his companions." Appellant’s Br. p. 10.

In resolving this issue, we note that a valid claim of defense of oneself or another person is a legal justification for an otherwise criminal act. Ind. Code § 35-41-3-2(a); see also Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). In order to prevail on a claim of self-defense when deadly force is used, a defendant must show that he: (1) was in a place where he had a right to be; (2) did not provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear of death or great bodily harm. I.C. § 35-41-3-2; Wilson, 770 N.E.2d at 800. An individual is justified in using deadly force only if he or she "reasonably believes that that force is necessary to prevent serious bodily injury to [the individual] or a third person." I.C. § 35-41-3-2(a); see also Harmon v. State, 849 N.E.2d 726, 730 (Ind. Ct. App. 2006). The amount of force that an individual may use to protect himself or herself must be proportionate to the urgency of the situation. Harmon, 849 N.E.2d at 730-31. When a person uses more force than is reasonably necessary under the circumstances, the right of self-defense is extinguished. Id. at 731. Finally, we note that when a claim of self-defense is raised and finds support in the evidence, the State has the burden of negating at least one of the necessary elements.

Note from the above:

1. The defendant claimed "self-defense" as a justification for an otherwise criminal act. IOW, he admitted that he killed the other guy but that he was justified in doing so because it was only in self-defense.

2. The defendant offered some evidence to prove his claim.

3. The state must now prove that one of the elements of the justification of self-defense was missing.

4. The state no longer has to prove that the other guy was killed & who did it. The defendant already admitted those facts when he claimed self-defense.

5. Let me direct you to a section in the above that has a direct bearing on the subject of this thread:

- An individual is justified in using deadly force only if he or she "reasonably believes that that force is necessary to prevent serious bodily injury to [the individual] or a third person."

- The amount of force that an individual may use to protect himself or herself must be proportionate to the urgency of the situation.

- When a person uses more force than is reasonably necessary under the circumstances, the right of self-defense is extinguished.

The law on self-defense is not significantly different between what is required in or out of your home. The biggest difference is that the need to believe that bodily harm is imminent outside of your home is not present inside your home. That part is what is presumed. Not that it is ALWAYS reasonable to use deadly force. Look at the wording of the two parts of the IC. They are very similarly constructed.

One requires you to reasonably believe that ONLY deadly force will stop the SBI that is about to occur. The other requires you to reasonably believe that ONLY deadly force will stop the attack on your home.

According to the case above, it isn't ALWAYS reasonable to use deadly force in all circumstances.

 

[RichardR]

The law on self-defense is not significantly different between what is required in or out of your home. The biggest difference is that the need to believe that bodily harm is imminent outside of your home is not present inside your home. That part is what is presumed. Not that it is ALWAYS reasonable to use deadly force. Look at the wording of the two parts of the IC. They are very similarly constructed.

One requires you to reasonably believe that ONLY deadly force will stop the SBI that is about to occur. The other requires you to reasonably believe that ONLY deadly force will stop the attack on your home.

Finity, he part in blue is correct, however the part in red is not correct, there is no such requirement in the statute.

 

[finity]

Finity, he part in blue is correct, however the part in red is not correct, there is no such requirement in the statute.

Do you think that it is always reasonable to believe that it is necessary to use deadly force outside your home to prevent serious bodily injury (as in the first part of the IC not pertaining to you home)?

 

[RichardR]

Do you think that it is always reasonable to believe that it is necessary to use deadly force outside your home to prevent serious bodily injury (as in the first part of the IC not pertaining to you home)?

What I think doesn't matter, but the statute specifically says that the use of reasonable force, including deadly force is justified when it is used to prevent serious bodily injury &/or prevent or terminate an unlawful entry.

 

[IndyTech]

Why do people argue so long over what is considered to be "reasonable"? The definition is exactly the same to no two men.

 

[finity]

What I think doesn't matter, but the statute specifically says that the use of reasonable force, including deadly force is justified when it is used to prevent serious bodily injury &/or prevent or terminate an unlawful entry.

Good now we're getting somewhere.

You say the IC says that it is always reasonable to use deadly force in either a SBI or home invasion scenario.

You're right that what you think doesn't matter.

What I think doesn't matter either.

What really matters is what the courts have decided the IC means.

I've posted that interpretation above in the case I quoted:

An individual is justified in using deadly force only if he or she "reasonably believes that that force is necessary to prevent serious bodily injury to [the individual] or a third person." I.C. § 35-41-3-2(a); see also Harmon v. State, 849 N.E.2d 726, 730 (Ind. Ct. App. 2006). The amount of force that an individual may use to protect himself or herself must be proportionate to the urgency of the situation. Harmon, 849 N.E.2d at 730-31. When a person uses more force than is reasonably necessary under the circumstances, the right of self-defense is extinguished.

The court above obviously feels that there is a time when it would not be reasonable to use deadly force or they wouldn't have logically been able to put the last sentence there.

As a matter of fact the entire passage above lays out the argument that the courts will not ALWAYS feel that the use of deadly force is reasonable. To continue to say so is just being willfully ignorant.

You can argue with me all you'd like but when the entity that will convict you & then hear your appeal says differently than you do, you're screwed.