GuyRelford
Master
For those of you who have requested additional "legal scenarios," here's the next one:
You're minding your own business, sitting in your SUV at a stop light at Capitol and South Streets in Indy. You notice a very intoxicated man on foot, weaving in and out of the cars at the intersection, cursing and yelling incomprehensibly. You also notice that he has what appears to be a tire iron in his hand.
He approaches your vehicle, pounding on the hood with his free hand and yelling at you to get out of your SUV. He screams that he likes your truck and wants to drive it home.
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. He never produces a gun or a knife, but at one point he shows you the tire iron through the window, and says, "How'd you like some of this? Now get out of the damn truck."
You're the first car at the intersection and the light turns green, but you pull your handgun from your center console and shoot him through the closed window, killing him instantly.
Do you have any legal problems?
========================
Here's my response:
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."
You're minding your own business, sitting in your SUV at a stop light at Capitol and South Streets in Indy. You notice a very intoxicated man on foot, weaving in and out of the cars at the intersection, cursing and yelling incomprehensibly. You also notice that he has what appears to be a tire iron in his hand.
He approaches your vehicle, pounding on the hood with his free hand and yelling at you to get out of your SUV. He screams that he likes your truck and wants to drive it home.
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. He never produces a gun or a knife, but at one point he shows you the tire iron through the window, and says, "How'd you like some of this? Now get out of the damn truck."
You're the first car at the intersection and the light turns green, but you pull your handgun from your center console and shoot him through the closed window, killing him instantly.
Do you have any legal problems?
========================
Here's my response:
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."
Last edited:
