Can you shoot him through the window?

[MeltonLaw]

That's a huge burden! In the affirmative defense of SELF defense, YOU must prove your innocence by a preponderance of the evidence.... 51%. The reasonable doubt standard no longer applies once you assert this defense. If the prosecution has met the elements of their case you may proceed with your affirmative defense if your intent to do so was in the pleadings. A preponderance of the evidence is a much harder standard to meet than one juror with doubt. You must “tip the scales”. If I’m a juror you are not getting away with this shooting. (Based on the facts as we know them at this moment) If you were a juror perhaps the defendant would go free. Therein lies the problem: You don’t know what you are going to get! Why go through that?

I'm sorry but you are wrong here. The the prosecution must disprove the defendant's assertion that they acted in self defense not by a preponderance of the evidence but by a reasonable doubt which is the higher standard to prove.
To prevail on a claim of self-defense in a homicide prosecution, the defendant must show that she was in a place where she had a right to be, that she acted without fault, and that she had a reasonable fear of death or great bodily harm. Martin, 512 N.E.2d at 851. Once the defendant raises the issue of self-defense, the State bears the burden of disproving the existence of one of the elements of self-defense. Id. One way the State may meet this burden is by presenting evidence sufficient to convince a reasonable juror beyond a reasonable doubt that the defendant, in light of all the circumstances known to her, could not have entertained a bona fide belief she was in danger of death or great bodily harm. Holder v. State 571 N.E. 2d 1250 (Indiana 1991).
Also, as I have said in other posts you are presumed innocent until proven guilty. Thus you do not need to prove your innocence the state must prove your guilt.

 

[Dashman010]

In the affirmative defense of SELF defense, YOU must prove your innocence by a preponderance of the evidence.... 51%. The reasonable doubt standard no longer applies once you assert this defense.

As MeltonLaw just said, this is absolutely wrong. You need simply raise self defense as an issue and present some meager evidence of it to get the self defense jury instruction. THEN, the state must prove all of the elements of the crime beyond a reasonable doubt AND disprove at least one of the elements of self defense beyond a reasonable doubt.

 

[Dashman010]

You could have showed him your pistol and asked him , "How'd YOU , like some of this ? NOW GET OUT OF MY DAMN FACE !

The question isn't "could you have done something else," the question is "is deadly force authorized at that moment."

 

[Fargo]

That's a huge burden! In the affirmative defense of SELF defense, YOU must prove your innocence by a preponderance of the evidence.... 51%. The reasonable doubt standard no longer applies once you assert this defense.

That is an absolutely incorrect statement of the law. Self-defense is a defense which negates an element of the crime via justification and so in Indiana the state must DISPROVE IT BEYOND A REASONABLE DOUBT.

The preponderance standard you refer to applies to defenses which do not negate an element by justification but rather go to culpability. An example of such a defense would be that in a statutory rape case you had a reasonable belief that the victim was of legal age.

Joe

 

[2ADMNLOVER]

He stands outside your driver's side window, pounding on it with his free hand, demanding that you get out of the truck and give him the keys
With what did he touch your vehicle , a hand ?

Do you have any legal problems?

If an attacker is banging on your hood and window with a tire iron yelling obscenities and telling you to get out of the vehicle, Did this happen ? it is going to be very hard to prove that a victim could not have reasonably thought "dear god, this guy is gonna break into my car right now."

The question isn't "could you have done something else," the question is "is deadly force authorized at that moment."

What was the original question ? I figured that in over Two days we've strayed from the OP original question that I would throw that in as another option as well .

 

[GuyRelford]

This has been a great discussion and I'd like to post my analysis at this time. Obviously, my answer is not meant to be legal advice in any way, and this answer is only my opinion - nothing is for certain when prosecutors, judges and juries are involved.

The purpose of my scenario was to point out the tension that exists in Indiana's "self defense" statute between the fact that there is an express statutory statement that "there is no duty to retreat" under some circumstances, yet there is a requirement that the use of any force in self defense must be "reasonable."

Importantly, the statement that "there is no duty to retreat" is expressly conditional on "a reasonable belief" that deadly force was "necessary" to "prevent" or "terminate" the unlawful conduct. If there is no such "reasonable belief," the statement that there is "no duty to retreat" simply doesn't apply, under the express terms of the statute itself.

As many of you have pointed out, the relevant subsections of the statute are IC 35-41-3-2(a) and (b):

"Use of force to protect person or property

Sec. 2. (a) A person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person:

(1) is justified in using deadly force; and

(2) does not have a duty to retreat;

if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.

(b) 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.;"

In my scenario, I agree with several of the posters who have said that we have the attempted commission of a forcible felony (i.e., carjacking) by virtue of the BG threatening the driver through the window with the tire iron and demanding that the driver exit the vehicle.

The definition of “forcible felony” includes the “threat of force”.

“’Forcible felony’ means a felony that involves the use or threat of force against a human being, or in which there is imminent danger of bodily injury to a human being.” IC 35-41-1-11.

And the carjacking statute also includes the “threat of force”:

“Carjacking

Sec. 2. A person who knowingly or intentionally takes a motor vehicle from another person or from the presence of another person:

(1) by using or threatening the use of force on any person; or

(2) by putting any person in fear;

commits carjacking, a Class B felony.” IC 35-42-5-2

However, as stated, the self defense statute only authorizes deadly force, and relinquishes the driver of a duty to retreat (and here there was a clear opportunity to retreat - the light turned green and the driver's car was the first car at the intersection) IF the driver "reasonably believe[d] that [deadly force] was necessary to prevent serious bodily injury or . . . the commission of a forcible felony" or "to prevent or terminate an unlawful entry of or attack on . . . [his] occupied motor vehicle."

Again, if no such "reasonable belief" existed, the statement that "there is no duty to retreat" simply doesn't apply.

Under my scenario, I think it is entirely plausible for a prosecutor to argue to a jury that no force whatsoever was "necessary" to "prevent serious bodily injury" or "the commission of a forcible felony" or to "prevent or terminate" the "unlawful entry of or attack on" the occupied motor vehicle - because the simple act of stepping on the gas would have "prevented" or "terminated" the unlawful conduct at issue.

That said, there are two important points to consider before we conclude that the driver would be charged, prosecuted or convicted. The first is that, as MeltonLaw and Fargo have correctly pointed out, the State bears the burden of negating at least one element of the justification of self defense "beyond a reasonable doubt," once the defendant raises the defense. Just as importantly, whether the driver had a "reasonable belief" that justified the use of deadly force can only be analyzed from the perspective of the driver himself - under the totality of the circumstances as they existed from his perspective.

As the Indiana Court of Appeals has stated,

"A defendant's belief of apparent danger does not require the danger to be actual danger, but the belief must be in good faith. . . . The question of the existence of such danger, the necessity or apparent necessity, and the amount of force necessary to be employed to resist the attack can only be determined from the standpoint of the defendant at the time and under all of the then existing circumstances. . . . Focusing on the 'standpoint of the defendant' means at least two things: 1) the trier of fact must consider the circumstances only as they appeared to the defendant, and 2) the defendant's own account of the event, although not required to be believed, is critically relevant testimony." Brand v. State, 766 N.E.2d 772 (Ind. Ct. App. 2002).

Because of these considerations, I believe that it might be difficult for the State to negate the existence of the required "reasonable belief" that deadly force was necessary under the circumstances, from the perspective of the driver. For those reasons, the driver might not even be charged.

Nonetheless, I think it is very important to point out the fact that the statutory statement that "there is no duty to retreat" is expressly contingent on the existence of a "reasonable belief" that “deadly force” was “necessary to prevent serious bodily injury . . . or the commission of a forcible felony” or that such force was “necessary to prevent or terminate” the “unlawful entry of or attack on . . . an occupied motor vehicle.” Under my scenario, the opportunity to end the encounter, and any additional criminal activity, by simply driving away casts serious doubt on the existence of any such "reasonable belief."

 

[IndyGunSafety]

That is an absolutely incorrect statement of the law.

Yep. It sure was. Civil case only.

 

[MeltonLaw]

NO SIR! When you assert an affirmative defense such as self defense, the rolls change and the burden of proof is now on you. In the pleadings you have to tell the court you may wish assert this defense. Then, once the defense rests you can decide to use it or not. If you do YOU MUST PROVE YOUR CASE BY A PREPONDERANCE OF THE EVIDENCE.

This is true only in civil cases. Obviously if you are being tried for murder, manslaughter, or assualt with a deadly weapon you are not in a civil case. Next you state "in your pleadings". In a criminal case there will not be a pleadings stage. The state files an information and an arrest warrant is issued.
This is a criminal affirmative defense/justification. As has been stated, with citations to case law, this justification does not cause a shift of the burden from the prosecution to the defendant. The burden in criminal prosecutions is always on the defense with one caveat. That caveat being when the defendant attempts to plea insanity. And, again, you are innocent until proven guilty. This means, does not imply but means, that you do not have to prove your innocence, the state has to prove your guilt.
Now in a civil case the burden will shift from the plaintiff to the defendent if the defendent attempts to employ an affirmative defense. This is where your confusion lies.

 

[2ADMNLOVER]

Under my scenario, the opportunity to end the encounter, and any additional criminal activity, by simply driving away casts serious doubt on the existence of any such "reasonable belief."

So in plain English , shooting the guy , with the details of the scenario being exactly what they are , as given , is the WRONG THING TO DO ?

Not gonna say I told you guys so , not gonna do it , nope it wouldn't be prudent at this juncture .

 

[IndyGunSafety]

So in plain English , shooting the guy , with the details of the scenario being exactly what they are , as given , is the WRONG THING TO DO ?

Not gonna say I told you guys so , not gonna do it , nope it wouldn't be prudent at this juncture .
__________________

LOL! I'm right there with you man! Although clearly there is some question of my understanding of the law. I'm working on it.

 

[Dashman010]

Nonetheless, I think it is very important to point out the fact that the statutory statement that "there is no duty to retreat" is expressly contingent on the existence of a "reasonable belief" that “deadly force” was “necessary to prevent serious bodily injury . . . or the commission of a forcible felony” or that such force was “necessary to prevent or terminate” the “unlawful entry of or attack on . . . an occupied motor vehicle.” Under my scenario, the opportunity to end the encounter, and any additional criminal activity, by simply driving away casts serious doubt on the existence of any such "reasonable belief."

Gunlawyer,

I following the reasoning in your post, but I'm not quite sure I buy your argument that all of the elements of the self defense justification must be met before the "retreat clause" becomes operative. Consider the following scenario:

At 2AM you wake up to the sound of your front door coming crashing down. You grab your gun at your bed and wait. You window is open, you live on the first floor, and can easily jump out. You don't, and stay in your house. Seconds later the bad guy swings open your door with a knife, 15 feet away.

At this point is where the analysis comes in. If you read the statute literally, it is not "necessary" to shoot the guy to stop the assault. After all, you can just jump out of the window that you're standing next to. But Indiana law, and the law of several states, specifically says you have no duty to retreat. in my mind, that means that when you are assaulted or otherwise, you do not have to move at all from the spot you currently occupy so long as you are legally there. Assuming you don't have to move, then the question is "do you reasonably believe that force is required to prevent or stop serious bodily harm, death, or a forcible felony."

It seems to me that reading the law the way you do imposes a duty of retreat upon the citizens of Indiana up until the very moment where that retreat is impossible. After all, using force is never "necessary" (used literally) if you have an opportunity to evade and retreat.

Going back to my hypo, if you shot the man 15 feet away, by your argument, the prosecutor could file against you because you had a way to evade the attack, and therefore couldn't have reasonably believed that your force was necessary to stop the attack. I don't buy this.

 

[Delmar]

So in plain English , shooting the guy , with the details of the scenario being exactly what they are , as given , is the WRONG THING TO DO ?

but whether or not it was the "WRONG THING TO DO" was not the question.

 

[GuyRelford]

This is true only in civil cases. Obviously if you are being tried for murder, manslaughter, or assualt with a deadly weapon you are not in a civil case. Next you state "in your pleadings". In a criminal case there will not be a pleadings stage. The state files an information and an arrest warrant is issued.
This is a criminal affirmative defense/justification. As has been stated, with citations to case law, this justification does not cause a shift of the burden from the prosecution to the defendant. The burden in criminal prosecutions is always on the defense with one caveat. That caveat being when the defendant attempts to plea insanity. And, again, you are innocent until proven guilty. This means, does not imply but means, that you do not have to prove your innocence, the state has to prove your guilt.
Now in a civil case the burden will shift from the plaintiff to the defendent if the defendent attempts to employ an affirmative defense. This is where your confusion lies.

Yep - what he said.

 

[2ADMNLOVER]

but whether or not it was the "WRONG THING TO DO" was not the question.

Well yea , OK , ya got me there , but I don't have to step in a pile to know it's gonna stink .

 

[GuyRelford]

Gunlawyer,

I following the reasoning in your post, but I'm not quite sure I buy your argument that all of the elements of the self defense justification must be met before the "retreat clause" becomes operative. Consider the following scenario:

At 2AM you wake up to the sound of your front door coming crashing down. You grab your gun at your bed and wait. You window is open, you live on the first floor, and can easily jump out. You don't, and stay in your house. Seconds later the bad guy swings open your door with a knife, 15 feet away.

At this point is where the analysis comes in. If you read the statute literally, it is not "necessary" to shoot the guy to stop the assault. After all, you can just jump out of the window that you're standing next to. But Indiana law, and the law of several states, specifically says you have no duty to retreat. in my mind, that means that when you are assaulted or otherwise, you do not have to move at all from the spot you currently occupy so long as you are legally there. Assuming you don't have to move, then the question is "do you reasonably believe that force is required to prevent or stop serious bodily harm, death, or a forcible felony."

It seems to me that reading the law the way you do imposes a duty of retreat upon the citizens of Indiana up until the very moment where that retreat is impossible. After all, using force is never "necessary" (used literally) if you have an opportunity to evade and retreat.

Going back to my hypo, if you shot the man 15 feet away, by your argument, the prosecutor could file against you because you had a way to evade the attack, and therefore couldn't have reasonably believed that your force was necessary to stop the attack. I don't buy this.

I don't disagree with you at all. And I didn't conclude that any prosecutor would necessarily file charges under the facts of my scenario - for reasons that I discussed.

I just wanted to point out the very large "if" in the self defense statute, and how that, in combination with "necessary to prevent or terminate" creates some ambiguity in Indiana law that has not yet been tested in the courts. The motivation for my post is that I get a little nervous when folks discuss the "no duty to retreat" rule in absolute terms, without considering what appears in the statute after "if."

 

[GuyRelford]

Gunlawyer,

I following the reasoning in your post, but I'm not quite sure I buy your argument that all of the elements of the self defense justification must be met before the "retreat clause" becomes operative. Consider the following scenario:

At 2AM you wake up to the sound of your front door coming crashing down. You grab your gun at your bed and wait. You window is open, you live on the first floor, and can easily jump out. You don't, and stay in your house. Seconds later the bad guy swings open your door with a knife, 15 feet away.

At this point is where the analysis comes in. If you read the statute literally, it is not "necessary" to shoot the guy to stop the assault. After all, you can just jump out of the window that you're standing next to. But Indiana law, and the law of several states, specifically says you have no duty to retreat. in my mind, that means that when you are assaulted or otherwise, you do not have to move at all from the spot you currently occupy so long as you are legally there. Assuming you don't have to move, then the question is "do you reasonably believe that force is required to prevent or stop serious bodily harm, death, or a forcible felony."

It seems to me that reading the law the way you do imposes a duty of retreat upon the citizens of Indiana up until the very moment where that retreat is impossible. After all, using force is never "necessary" (used literally) if you have an opportunity to evade and retreat.

Going back to my hypo, if you shot the man 15 feet away, by your argument, the prosecutor could file against you because you had a way to evade the attack, and therefore couldn't have reasonably believed that your force was necessary to stop the attack. I don't buy this.

By the way, I'm not alone in having my concern. I just checked what Bryan Ciyou says in his book, Indiana Hangun Law, 2d Edition:

"Clearly, the 'Castle Doctrine,' via Indiana's current statutory scheme, does not require retreat. This noted, however, there is at least one critical distrinction that appears to exist between the Castle Doctrine and Indiana's present state of the law on the use of 'deadly force' to protect one's dwelling. The Castle Doctrine's authority did not include any 'reasonableness' component. Indiana's statute still does. This may well still require retreat. That is, if an intruder is swinging a bat, but not connecting, and the homeowner has the ability to retreat instead of shooting, it is reasonable to shoot instead of retreat? . . . . How this distinction will be interpreted by the courts is unclear." See page 115.

 

[GuyRelford]

I'm not quite sure I buy your argument that all of the elements of the self defense justification must be met before the "retreat clause" becomes operative.

Sorry - one more response - I do have to disagree with this statement. The statute is clear that all of the elements of one of the justifications that follow "if" absolutely must be met before the "no duty to retreat" clause becomes operative.

 

[2ADMNLOVER]

It seems to me that reading the law the way you do imposes a duty of retreat upon the citizens of Indiana up until the very moment where that retreat is impossible. After all, using force is never "necessary" (used literally) if you have an opportunity to evade and retreat.

Don't read too much into my posts , very rarely will I tell you that retreating is a good idea .

Stand your ground for sure and don't be a wuss , but don't be so set on wanting someone to try you either .

NOT THAT YOU ARE , just sayin some folks seem as though they can't wait for an opportunity at a "righteous shoot" .

I will say that in as much as it depends on me , there will be peace . If I can get away from you , I will .

Neither a person's words or opinions define who I am or will effect me much at all , so I don't see the need to call every bluff .

For me , the line is drawn in my home . You will do as you asked or you'll leave , one way or another .

This way works for me , I'm not saying any and all should follow this , nor am I trying to intentionally impose on anyone .

Although I think there is much that can be learned , I view these "scenarios" as games of who is the most right .

In this case I think the "don't shoot" crowd won .

 

[Dashman010]

I don't disagree with you at all. And I didn't conclude that any prosecutor would necessarily file charges under the facts of my scenario - for reasons that I discussed.

I just wanted to point out the very large "if" in the self defense statute, and how that, in combination with "necessary to prevent or terminate" creates some ambiguity in Indiana law that has not yet been tested in the courts. The motivation for my post is that I get a little nervous when folks discuss the "no duty to retreat" rule in absolute terms, without considering what appears in the statute after "if."

I would completely agree that the issue is yet to be resolved by the courts. However, I would still contend that based on the language of previous Indiana appellate court cases, which only require that a person (1) was in a place where he had a right to be; (2) acted without fault; and (3) had a reasonable fear of death or serious bodily harm, that when the light turns green in your scenario, you don't have any duty to retreat, at any time. The prosecution in a case must prove one of the above elements did not exist, none of which are similar to "could have gotten away or avoided the confrontation."

In my view, someone standing next to your window with a tire iron asking if you "want some of this" would put me, at least, in fear or GBH or death. I'm also there legally, and did not act with any fault. Based on those 3 elements being met, it then is necessary to me to use force to prevent the unlawful use of force.

 

[GuyRelford]

I would completely agree that the issue is yet to be resolved by the courts. However, I would still contend that based on the language of previous Indiana appellate court cases, which only require that a person (1) was in a place where he had a right to be; (2) acted without fault; and (3) had a reasonable fear of death or serious bodily harm, that when the light turns green in your scenario, you don't have any duty to retreat, at any time. The prosecution in a case must prove one of the above elements did not exist, none of which are similar to "could have gotten away or avoided the confrontation."

In my view, someone standing next to your window with a tire iron asking if you "want some of this" would put me, at least, in fear or GBH or death. I'm also there legally, and did not act with any fault. Based on those 3 elements being met, it then is necessary to me to use force to prevent the unlawful use of force.

And that's your preregative. (I can always use more clients. ) Just be wary of relying on caselaw that predates our current statute (2006).