Can You Kill Him?

[GuyRelford]

Wow. Lotsa good stuff in this thread.

One little question left if Gun Lawyer will patronize us a bit longer:

Deadly force vs. reasonable force
I notice the two are used at different times in the statutes. What constitutes each? If only reasonable force is legal, does that mean I can't shoot him but I can pistol whip him?

"Reasonable force" is not statutorily defined, but is generally defined as that degree of force that is necessary to terminate the illegal activity, but no more. The key is that it be "proportionate to the situation." See Geralds v. State, 647 N.E.2d 369, 373 (Ind. Ct. App. 1995).

As I've heard several LEOs define it, "the threat defines the response." I think that summarizes it very well.

"Deadly force" has been defined by the legislature:

IC 35-41-1-7
"Deadly force" defined
Sec. 7. "Deadly force" means force that creates a substantial risk of serious bodily injury.

 

[Indy317]

The problem is you can't shoot someone for something they might do in the future.

The threat has to be imminent.

If you shoot someone for some feared future attack you better have a very compelling reason or some strong evidence to support your theory.

Then how can a person be justified in shooting anyone in their home, even if that person is unarmed or the home owner doesn't see a gun? Last I heard, if a person is in your home, you are within the right to consider them a threat, reguardless of what you see, hear, etc..

Using your logic, a person can be in your home and you can't pull the trigger until they do something that finally raises the threat level to imminent (ie: they grab you, hit you, pull a gun, pull a knife, move towards you, etc..) So if I person just stands in your home, are you justified or not? What is the imminent threat of a person just standing in your home?

 

[jpserv]

Either way he's getting shot, but I would have to say my reaction time isn't that slow he would have been dead before the shotgun hit the ground.

 

[sparky241]

I think technically he was legally allowed. A person has a right to protect life and property from what they perceive as a reasonable threat. But in the eyes of Lake county da? I'm going to jail.I wouldnt put it past him to try.

 

[finity]

Then how can a person be justified in shooting anyone in their home, even if that person is unarmed or the home owner doesn't see a gun? Last I heard, if a person is in your home, you are within the right to consider them a threat, reguardless of what you see, hear, etc..

Using your logic, a person can be in your home and you can't pull the trigger until they do something that finally raises the threat level to imminent (ie: they grab you, hit you, pull a gun, pull a knife, move towards you, etc..) So if I person just stands in your home, are you justified or not? What is the imminent threat of a person just standing in your home?

Because the law makes a specific exception for using deadly force in your home, business or occupied motor vehicle. That is based on the theory that if a BG is bold enough to break into one of the above places with people present then it is assumed that they ARE GOING TO DO BODILY HARM, therefore deadly force is a REASONABLE response.

OTOH, there are several other places that do, in fact, follow the "shooting someone in your home just for being there is illegal" legal theory. Some places do have a "duty to retreat" before deadly force is authorized, even in your home. IN doesn't.

HOWEVER, even in IN you still must provide evidence that your use of deadly force was REASONABLE. IOW, even in IN you still don't have carte blanche authorization to use deadly force JUST because someone is "in your home". There has to be "an attack" on your home & your use of deadly force must be a "reasonable" response with the goal of "terminating or preventing the attack" not to kill the intruder (even though if that happens as a by-product if your "reasonable response", so be it).

I don't have the links at hand to post the applicable portion of the IC but it has been posted many times already. Read it if you haven't, it's in there.

 

[sonovasailor]

I say; You let the guy go with grandma's silver. Keep the Ak and shotgun, put a butcher knife in the dead guy's hand, and don't say anything about the guns to the cops. Then go to the range on saturday! It's a win-win scenario. One less bad guy, you have two new toys and Granny's silver never was used anyway. I say; " Come on Bad Guys!!!"

 

[ihateiraq]

my favorite responses came from all the guys that were smarter than the scenario. "its ok bc he wasnt running away...he was about to leap into a helicopter outside and use a minigun on my family." seems pretty simple to me. you dont shoot a man that has thrown down his weapon and is running away. but, common sense is no longer a common virtue.

 

[snojet]

To "Gunlawyer",
I will echo the sentiment of "Thanks for the great thread". It has provided a lot of in-site to a question that everyone here as considered.
I am looking forward to your next question/scenario.

To "cosermann",
Thanks for your addition to the thread. I now have some more good reading when I get on-line

 

[talshu]

A cop told me once that you could shoot through the door if someone was trying to break in but it wouldnt stand up in court

 

[talshu]

I guess my final saying is you can come in my house as a friend and leave as a friend or you can break into my house and be carried out in a body bag I wont take any chances

 

[Kingrat]

im not reading to the end of 19 pages to comment, but i would say if i saw two guys the second guy whould be shot after the first one before his ak can even hit the ground

 

[GuyRelford]

Hey, folks. It's been quite a few pages since I posted my response to the OP, so I thought I'd repost it here, in case it had gotten lost in the shuffle for some folks who might be interested.

Okay, folks, here is my analysis. But first, a few caveats (hey, I'm a lawyer - there's no use being a lawyer if you can't issue caveats):

1. Nothing is absolute. What I set out below is my interpretation of how Indiana law applies to these facts. A HUGE variety of factors, ranging from the timing of the prosecutor's next election to the sympathy a jury would or wouldn't feel for Bad Guy #2 under these circumstances would undoubtedly influence how this all comes out. We've all seen too many real-life situations with virtually identical facts that come out in completely different ways, e.g., abused wife #1 shoots drunken husband and is found completely justified and goes home to her kids, while abused wife # 2 shoots her drunken husband and goes to jail for 2nd degree murder. That's just the nature of the beast, because prosecutors and jurors have some significant latitude in deciding how they interpret the facts, and how Indiana law applies to those facts.

2. I am not giving you legal advice. Nothing I say below should be interpreted as me acting as your attorney and/or advising you as to when you can or cannot use deadly force. That is for you to decide in consultation with your own lawyer if you deem that necessary. I'm simply throwing out a hypothetical and giving you my interpretation of the legal issues that it creates, just as I do in my course, "Comprehensive Indiana Gun Law."

Okay, with the legalese out of the way, here's how I interpret the law under these facts:

As an initial matter, as Cygnus pointed out, I really asked two different questions - one in the title of the thread "Can you kill him?" and another in the last line of my OP: "Do you have legal problems?" That is a great catch, but it wasn't intentional on my part. What I should have said in the title was "You’ve killed him – Do you have legal problems?" since, in my scenario, you've already shot him. If your answer was either "yes" or "no" depending on which question your were answering, you get a full pass on that point!

My real goal in posting this hypothetical was to raise awareness of the fact that Indiana's "castle doctrine" is not absolute. We've all heard folks say, "Hey, if he's in my house illegally, I can kill him. No questions asked." That is not 100% true and I wanted to make folks aware of that. That doesn't mean that if someone shot BG #2 in my scenario he's necessarily going to jail, but my hypothetical raises some issues of Indiana law that all Indiana gun owners should understand.

Everyone who said we should focus on IC 35-41-3-2, below, is absolutely right. Here's the statute, with some important portions highlighted:

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.
(c) With respect to property other than a dwelling, curtilage, or an occupied motor vehicle, a person is justified in using reasonable force against another person if the person reasonably believes that the force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in the person's possession, lawfully in possession of a member of the person's immediate family, or belonging to a person whose property the person has authority to protect. However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
only if that force is justified under subsection (a).

So how does this all play out under our scenario:

We've used deadly force as to both BGs. As you all stated, BG #1, illegally entering the bedroom with a loaded AK, can be justifiably killed under these facts. Deadly force is justified under several different provisions of the statute:

As he walked into the bedroom with a loaded AK, we would undoubtedly be under a "reasonable belief" that "reasonable force," including "deadly force," was necessary to "prevent serious bodily injury" to ourselves or our family. That's the classic "self defense" rule, and applies whether you are in your home or elsewhere.

In addition, he was in the middle of what reasonably appeared to be an armed robbery. Without question, an armed robbery is a "forcible felony," and we were legally justified in using "reasonable force," including "deadly force," to "prevent" the commission of that forcible felony. That also applies whether you're in your home or outside your home. (Combined with the "no duty to retreat" language of the statute, that's what constitutes Indiana's "stand your ground" law outside the home - you can "stand your ground" (i.e., you have "no duty to retreat") and use reasonable force, including deadly force, to prevent the commission of a "forcible felony" upon you or a third person.)

Lastly, and most obviously, he was in our house illegally and showed no signs of leaving. So we would "reasonably believe" that "reasonable force," including "deadly force," was "reasonably necessary" to "prevent or terminate" his "unlawful attack" on our "dwelling." That's the "castle doctrine," and it definitely applies to justify our retirement of BG# 1 from the fight.

So, as you all recognized, the real issue comes down to BG #2. Let's first talk about self defense. While many of you pointed out some very legitimate questions (e.g., was he merely seeking cover to draw another weapon and return fire?, was he going outside to get help from additional BGs to return and kill you and your family?, etc.), I think it would difficult to justify killing BG #2 as self defense under the facts as I laid them out. He's thrown down his weapon and is leaving the fight. Our video system has captured him screaming toward the door in obvious fear, and apparently unarmed. At that point, would we "reasonably believe" that deadly force was "necessary to prevent serious bodily injury" to ourselves or our family? Never say never, but I think that's a tough argument.

But there's another component to self defense, which is to prevent the commission of a "forcible felony." He was engaged in an armed robbery, and now he's got Grandma's silver under his arm as he's heading out the door. We've got an argument here, but the focus is going to come down to two issues: 1) after he threw down his sawed-off shotgun, and was now just snatching the silver, was he still committing a "forcible felony," or was he now just committing a non-forcible burglary, since he didn't appear to be threatening anyone in the home as he went screaming out of the door. 2) Even more importantly, deadly force is only justifiable if it's necessary to "prevent" a forcible felony. It's not justified as "pay-back" for a forcible felony. I think the best argument for us on this point under the circumstances is that the forcible felony, armed robbery, started when the BGs broke into our home and wouldn't have been completed until BG #2 made his way out of the home with the proceeds of that forcible felony - Grandma's silver. Therefore, reasonable force, including deadly force, was reasonably necessary to "prevent" that forcible felony. That's a decent argument, but I can see a jury having a hard time with it - especially as they watched the video that shows at the time we shot him he was no longer being "forcible," notwithstanding the fact that he was still committing a felony.

But hold on, many of you correctly pointed out that reasonable force can be justified to protect personal property – in this case Grandma’s silver. That’s true, under section (c) of the statute:

“[A] person is justified in using reasonable force against another person if the person reasonably believes that the force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in the person's possession. . . .”

That’s absolutely true, but the last provision of that section puts a very important limitation on the use of deadly force to protect property:

“However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
only if that force is justified under subsection (a).”

Section (a) is the self defense provision, which we’ve already discussed. So if we’re not justified in using deadly force to protect ourselves or others against “serious bodily injury” or to prevent a “forcible felony,” we can’t use deadly force to protect Grandma’s silver either.

So how about the "castle doctrine"? The guy illegally broke into the house - and was still illegally in the house when we shot him. That's the classic "castle doctrine" defense, right?

Maybe not, the way Indiana's statute is written. Most importantly, reasonable force, including deadly force, is justified under our statute only if it is "necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling.” It was past the time to “prevent” the unlawful entry. So the question comes down to whether it was “necessary” to “terminate” the unlawful entry or attack upon our dwelling. The door is open, he’s thrown down his weapon, and he’s screaming for the door.

The question a prosecutor is likely to ask the jury is, “Ladies and Gentlemen, you’ve seen the videotape. Was any force at all, much less deadly force, necessary to terminate this attack upon the defendant’s dwelling?? Of course not, the victim was very enthusiastically terminating that attack on his own!!“

For that reason, and the real reason I posted this hypothetical, this scenario identifies a very important limitation on our ability to use deadly force under Indiana’s “castle doctrine,” and I wanted to raise that issue for discussion. Specifically, the force we apply, including deadly force, must be “necessary” to “prevent or terminate” the unlawful entry or attack upon our home.

So, in my mind, the real answer to the question, “Do you have legal problems,” is “probably.”

But several additional factors would undoubtedly come into play.

Unlike in many other jurisdictions, I think most prosecutors in Indiana would be very reluctant, for political reasons, to turn the victim of a crime into a potential criminal. No prosecutor wants to create that perception, and I think that would have significant weight with any Indiana prosecutor in deciding whether to bring charges.

And although this would have been impossible for us to assess at the time of the shooting, I also think that the background and criminal history of BG #2 would play a role in influencing how a prosecutor or a jury might view the situation. Consider these two examples of what I’m talking about:

Scenario 1: BG #2 was a career criminal who has spent over half his life in prison. He’d been convicted of multiple armed robberies, a rape (while committing a home invasion), and he was currently wanted on a warrant for murder for killing an elderly woman during a carjacking.

Scenario 2: BG #2 had never been arrested in his life. He was an honor student and football player at Brownsburg High School, and the only reason he was in your home at all was because BG #1 was his misfit uncle who just gotten out of prison and threatened to beat BG #2 and his little sister to death if BG #2 didn’t participate in the break-in at your home.

Of course, you couldn’t have known any of this, one way or the other - he was just a masked intruder in your home in the middle of the night. But how do you think those facts would influence a prosecutor or jury – having watched the video of you shooting him in the back of the head as he was ran screaming for the front door? Potentially, you could either be a hero or a murderer – for the same pull of the trigger.

And that’s the real reason for my post, to raise awareness of some of the limitations on the use of deadly force in Indiana – even under the well-known “castle doctrine.”

Thanks

 

[LEGENw84itDARY]

And although this would have been impossible for us to assess at the time of the shooting, I also think that the background and criminal history of BG #2 would play a role in influencing how a prosecutor or a jury might view the situation. Consider these two examples of what I’m talking about:

Scenario 1: BG #2 was a career criminal who has spent over half his life in prison. He’d been convicted of multiple armed robberies, a rape (while committing a home invasion), and he was currently wanted on a warrant for murder for killing an elderly woman during a carjacking.

Scenario 2: BG #2 had never been arrested in his life. He was an honor student and football player at Brownsburg High School, and the only reason he was in your home at all was because BG #1 was his misfit uncle who just gotten out of prison and threatened to beat BG #2 and his little sister to death if BG #2 didn’t participate in the break-in at your home.

Of course, you couldn’t have known any of this, one way or the other - he was just a masked intruder in your home in the middle of the night. But how do you think those facts would influence a prosecutor or jury – having watched the video of you shooting him in the back of the head as he was ran screaming for the front door? Potentially, you could either be a hero or a murderer – for the same pull of the trigger.


This was probably the best advice, I have seen on this website. Many kudos. I feel these scenarios are so important to understand and debate before even thinking about CCW

 

[ihateiraq]

that thread was dead for a year and a half. thats gotta be getting close to a record.

 

[E'villeGunner]

WOW! Talking about digging through the archives.

 

[LEGENw84itDARY]

that thread was dead for a year and a half. thats gotta be getting close to a record.

Some people weren't a member a year and a half ago and find the information still to be very important, maybe some new members will get a chance to read it.

 

[ihateiraq]

so have you read every thread on ingo?

 

[Armed Eastsider]

Whats to say he doesnt have a pistol in his pocket? Kill the ******.

 

[grunt soldier]

wow thread revival i say shoot him. look at how it played out in texas with the 2 illegals breaking into the mans neighbors house. he shot one clean and told the other to stop running and then shot him in the back and killed him. those criminals weren't even in his house. here is the story in case your not up on it

Joe Horn shooting controversy - Wikipedia, the free encyclopedia


now would it would have been the honor student from brownsburg would the jury have voted differently? possibly but you will never know until your in that situation.

 

[Armed Eastsider]

wow thread revival i say shoot him. look at how it played out in texas with the 2 illegals breaking into the mans neighbors house. he shot one clean and told the other to stop running and then shot him in the back and killed him. those criminals weren't even in his house. here is the story in case your not up on it

Joe Horn shooting controversy - Wikipedia, the free encyclopedia


now would it would have been the honor student from brownsburg would the jury have voted differently? possibly but you will never know until your in that situation.

The only debate that should have surrounded the Joe Horn shooting was if they should have gave Mr Horn a medal or a plaque.