Can you shoot him through the window?

[Dashman010]

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

Those elements were taken from Hood v. State, 877 N.E.2d 492 (Ind. App. 2007) -- Does not pre-date the statute.

 

[IndyGunSafety]

Yep - what he said.

I was wroooo.... wrrrr..... wwwwrrroooonnnn....

I was WRONG!

Thanks to those of you who PM'd me with info! Learning is a lifelong process!

 

[GuyRelford]

Those elements were taken from Hood v. State, 877 N.E.2d 492 (Ind. App. 2007) -- Does not pre-date the statute.

Understood - but for some reason the courts tend to recite the same pre-2006 rules, even after the amendment of our statute. For instance, where does "in a place where he had a right to be" appear in the current statute? I think this is simply some laziness by our appellate judges, particularly in cases where the specific wording of our current statute isn't dispositive (as it may well be in my scenario).

 

[Dashman010]

Understood - but for some reason the courts tend to recite the same pre-2006 rules, even after the amendment of our statute. For instance, where does "in a place where he had a right to be" appear in the current statute? I think this is simply some laziness by our appellate judges, particularly in cases where the specific wording of our current statute isn't dispositive (as it may well be in my scenario).

That may well be, but there are at least 20 opinions out there that recite the same language. Plus, and I may be wrong here because I haven't looked it up, I don't think the "in a place where he had a right to be" language was in the previous statute. I think it is a common law principle that, because it hasn't been abrogated by statute, still is applied. After all, a (again) literal reading of the statute would say that a person who is shoplifting but has not drawn a gun, who is then presented with a storeowner who has a gun, could pull and shoot the storeowner. Obviously the common law principle that self defense can't be used when you are in a place you have no right to be would apply.

 

[GuyRelford]

That may well be, but there are at least 20 opinions out there that recite the same language. Plus, and I may be wrong here because I haven't looked it up, I don't think the "in a place where he had a right to be" language was in the previous statute. I think it is a common law principle that, because it hasn't been abrogated by statute, still is applied. After all, a (again) literal reading of the statute would say that a person who is shoplifting but has not drawn a gun, who is then presented with a storeowner who has a gun, could pull and shoot the storeowner. Obviously the common law principle that self defense can't be used when you are in a place you have no right to be would apply.

But here's the fault in your logic - any additional common law requirements that have existed historically don't abrogate the current requirements of Indiana's "justification" statute, particularly when it's that current statute that creates the "no duty to retreat" rule! That's the whole point. And my interpretation isn't novel or a stretch - it's just giving the words in the statute their plain and ordinary meaning.

Again, your prerogative - you can believe otherwise, but I think it's risky to do so. And I wanted to give Indiana gun owners a heads up to that effect.

 

[Dashman010]

In conclusion, I have the following to say:

Your basis contention is that you can't have a "reasonable belief" that force is "necessary" if you can retreat.

Reading the statute as you say then, yields the following result:

You do not have a duty to retreat IF AND ONLY IF it is impossible for you to retreat (because if you could retreat, you couldn't have a reasonable belief).

That interpretation makes no sense at all and I think the courts have, perhaps not explicitly, said that it is not to be read that way in their use of the elements for a self defense instruction.

____

Always gotta love differences of opinion.

 

[GuyRelford]

In conclusion, I have the following to say:

Your basis contention is that you can't have a "reasonable belief" that force is "necessary" if you can retreat.

Reading the statute as you say then, yields the following result:

You do not have a duty to retreat IF AND ONLY IF it is impossible for you to retreat (because if you could retreat, you couldn't have a reasonable belief).

That interpretation makes no sense at all and I think the courts have, perhaps not explicitly, said that it is not to be read that way in their use of the elements for a self defense instruction.

____

Always gotta love differences of opinion.

Nope - I never said anything of the sort. Again, you're speaking in absolutes, which I never have and never would - especially when we don't have a single court opinion that interprets the new statute. What I said was, there is a tension between the "no duty to retreat" rule and the "reasonableness" requirement of the current statute, together with the "necessary to prevent or terminate" language. And Indiana gun owners should be aware of that fact - particularly when some folks throw around the "no duty to retreat" language in absolute terms that ignore everything in the statute that appears after "if."

 

[GuyRelford]

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."

 

[Beau]

My question is this.

If someone is yelling at me through my window, holding a metal bar and telling me to get out or else, my attention is not going to be focused on what color the light is. I'll be watching the aggressor. Unless there is a car next to you in the same field of view as the aggressor that starts to pull away or a car behind me taps their horn I might not notice the light was green.

So in your scenario how does the prosecuting attorney sufficiently prove that I was aware of the light turning green and saw it as an opportunity of escape?

 

[GuyRelford]

My question is this.

If someone is yelling at me through my window, holding a metal bar and telling me to get out or else, my attention is not going to be focused on what color the light is. I'll be watching the aggressor. Unless there is a car next to you in the same field of view as the aggressor that starts to pull away or a car behind me taps their horn I might not notice the light was green.

So in your scenario how does the prosecuting attorney sufficiently prove that I was aware of the light turning green and saw it as an opportunity of escape?

I think that's a great point, and since the entire "reasonable belief" issue is determined only by your prespective under all of the circumstances at the time, I think your report to the responding LEOs (or testimony) would be critical on that issue. And your question raises a perfect example of the reason that there are no absolutes under this scenario.

 

[finity]

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 .

Well...if we're keeping score...I think I pretty much nailed it.

Not that I'm bragging or anything. I'm way too modest for that.

 

[Gaudard]

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.

No matter where you stand on this, you should always look both ways when the light turns green before you go.

 

[LEGENw84itDARY]

http://www.youtube.com/watch?v=dNsA2NKewTw

this is a great scenario, after watching this video has really motivated me to get my LTCH. when it comes to having a green light i ask myself would i even be able to pay attention to the light when a guy is walking around my car harassing me? and one swing through a window could blind me with glass or even continue and hit me.

Im also curious as to if you can legally point your gun at BG to end the harassment in this case?

 

[Roadie]

http://www.youtube.com/watch?v=dNsA2NKewTw

this is a great scenario, after watching this video has really motivated me to get my LTCH. when it comes to having a green light i ask myself would i even be able to pay attention to the light when a guy is walking around my car harassing me? and one swing through a window could blind me with glass or even continue and hit me.

Im also curious as to if you can legally point your gun at BG to end the harassment in this case?

From reading this site form the last few years, it seems the general consensus is that if you are pointing it it, you should be firing it..

 

[Bubba]

Willing to fire it, at least. A gun is not a bargaining chip. You should only draw if the situation warrants deadly force. If the BG runs away before you pull the trigger it's a bonus, but one should never draw with the intent solely to intimidate.

 

[Bunnykid68]

A guy waiving a tire iron around and threatening me ........I have no idea what color any light was.....my eyes were on the attacker.

 

[Ram-jac]

From the details of the scenario, I probably would have called 911 at first sight of the BG walking around acting in the manner described. Keeping my eyes on the BG the 911 operator would hear (and record) me informing the BG that the police have been called and are on their way and would also hear the BG being requested to not advance any closer with the weapon or I will defend myself. If I feel it necessary to draw my weapon, what happens next depends on the actions of the BG.