Someone Looking in my window and 1am last night

[indyjoe]

Why did you need to rack the gun, was it not ready for action?

I have racked a gun for effect, dropping the live round that was in the chamber out of it. The end result was what I wanted, I didn't have to fire the remaining rounds. This was in a vehicle, where I wasn't planning on shooting, but driving through the attackers. However, shooting would have been my second move (along with the hearing problems from discharging a pistol in a confined space.)

 

[groovatron]

OP why did your wife tell him to go around front? She made two mistakes that I see. That being one, the other was opening the door and confronting him without a weapon.


Here is one. And IMO it is a BS decision, the judge changed the law through his decision, he didn't find that the law was unjust he just changed it.

Converted file par

Thanks for the link.


Reading this case, I believe that it has a bit more to it than simply catching a person robbing or intruding on your property. I will still argue that most situations would be different and in favor of a responsible property owners.

Example:

I hear someone breaking into my car. I grab a gun with a light on it and confront the perp. With the light flooded on him, I announce my presence and tell him to lay face down on the ground. He has a choice.......he can run or follow my command. If he runs, I let him run. If he complies to my demand, I detain him untill police arrive. Now, if the guy turns around and happens to be armed, the situation changes and my finger engages the bang switch. But at least I will be as prepared as possible to have a tactical advantage if this happens to b the case.

I would love more case law links and the like. It is very informative. I will do a bit of footwork myself and contribute when I get a moment. Thanks all!

 

[RichardR]

In IN according to IN code, one can use reasonable force to terminate trespass if necessary. IN code also states that pointing a firearm at someone is legal if you are allowed to use reasonable force. The judge decided that pointing a firearm at someone is deadly force and set judicial precedent for that. There appears to be some confusion here, I'll try to see if I can clarify it. He did not rule that reasonable force was unnecessary in this case but that the pointing of a handgun was unreasonable because it was deadly force not reasonable force. Which is not what the law states.

Here is what was said with regards to the prosecution's claims that "pointing a firearm constituted deadly force": "There appears to be no case in Indiana addressing whether the conduct at issue here, pointing a loaded firearm, constitutes deadly force as referred to in the defense of property statute, Ind. Code § 35-41-3-2"

And here is the final ruling: "we conclude that Nantz’s conduct, pointing a loaded firearm at Petro’s head, was unreasonable force to use to protect his alleged property interest in the bulldozer. Thus, Nantz failed to prove his defense of property defense. Therefore, we find that the evidence was sufficient to support his conviction for pointing a firearm, as a Class D felony."

Which has the effect of changing the law.

Excuse my mistatement, I should of said had the effect of changing the law. Because until someone appeals it to the IN supreme court and they accept the case and rule on it, it stands as precedent.

No worries man, I hope I helped to clarify the matter.

 

[Keith_Indy]

Some motion sensitive lights would do wonders for your security as well.

 

[LawDog76]

IC 35-41-3-2
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.


Looking in the window and not being able to to give a legit answer to any of the question he was asked would lead me to believe he was casing your home therefore I believe you would of been justified pointing a firearm at him under the IC. If he was simply walking home he had no reason what so ever to be stopping and looking in your window.

 

[88GT]

IC 35-41-3-2
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.


Looking in the window and not being able to to give a legit answer to any of the question he was asked would lead me to believe he was casing your home therefore I believe you would of been justified pointing a firearm at him under the IC. If he was simply walking home he had no reason what so ever to be stopping and looking in your window.

The forcible felony clause may also have come into play here since who knows what the trespasser had in mind.

IANAL either, but I think that the "reasonable" standard is still a fairly good in this state. What I mean is that most Hoosiers would reasonably think that:
a) someone peeking into windows and, upon questioning, not being able to provide logical, coherent answers is up to no good and

b) the use of a firearm to detain and hold said someone until LE arrives is perfectly acceptable

Doesn't mean a prosecutor with an axe to grind wouldn't take the case to trial, but it does mean he's got less than even chance of persuading a jury that the actions of the individual were up to the level of criminal.

 

[SemperFiUSMC]

In IN according to IN code, one can use reasonable force to terminate trespass if necessary. IN code also states that pointing a firearm at someone is legal if you are allowed to use reasonable force. The judge decided that pointing a firearm at someone is deadly force and set judicial precedent for that. He did not rule that reasonable force was unnecessary in this case but that the pointing of a handgun was unreasonable because it was deadly force not reasonable force. Which is not what the law states.

Which has the effect of changing the law.



Excuse my mistatement, I should of said had the effect of changing the law. Because until someone appeals it to the IN supreme court and they accept the case and rule on it, it stands as precedent.

Umm ... No. Pointing a gun at someone is deadly force. It has been considered deadly force since, well, there have been guns.

Reasonable force means the force that a reasonable person would find necessary in the same circumstances. Deadly force may be reasonable force. Or it may not be. It's situational.

No new law. Just flawed legal analysis.

 

[Timjoebillybob]

Umm ... No. Pointing a gun at someone is deadly force. It has been considered deadly force since, well, there have been guns.

Reasonable force means the force that a reasonable person would find necessary in the same circumstances. Deadly force may be reasonable force. Or it may not be. It's situational.

No new law. Just flawed legal analysis.

IC 35-47-4-3
Pointing firearm at another person
Sec. 3. (a) This section does not apply to a law enforcement officer who is acting within the scope of the law enforcement officer's official duties or to a person who is justified in using reasonable force against another person under:
(1) IC 35-41-3-2; or
(2) IC 35-41-3-3.
(b) A person who knowingly or intentionally points a firearm at another person commits a Class D felony. However, the offense is a Class A misdemeanor if the firearm was not loaded.

 

[groovatron]

I stand by my plan........If someone is breaking into my garage, a gun will be fixed upon them until they are make like a tree and leave.

What is one supposed to do? Sit inside, hide, and wait for the cops? Or have a gun in low-ready only to suprise an armed perp that immediately engages you?

I guess these questions will never be know for most of us....thank God. It is great to contemplate the possibilites and learn form others victory's and mistakes.

 

[SemperFiUSMC]

I stand by my plan........If someone is breaking into my garage, a gun will be fixed upon them until they are make like a tree and leave.

What is one supposed to do? Sit inside, hide, and wait for the cops? Or have a gun in low-ready only to suprise an armed perp that immediately engages you?

I guess these questions will never be know for most of us....thank God. It is great to contemplate the possibilites and learn form others victory's and mistakes.

Difference between inside and outside your home (garage).

If they're outside and stay outside leave them there and call the po-po. If they get away so be it.

If they're outside and try to get inside pop them.

If they're inside pop them.

No low ready, no suprising an armed perp, no games.

 

[finity]

Here is what was said with regards to the prosecution's claims that "pointing a firearm constituted deadly force": "There appears to be no case in Indiana addressing whether the conduct at issue here, pointing a loaded firearm, constitutes deadly force as referred to in the defense of property statute, Ind. Code § 35-41-3-2"

If you would continue reading from where you left off you also find:

However, in Spurlock v. State, … our supreme court concluded that pointing a loaded firearm at a police officer was sufficient evidence to support a conviction for criminal recklessness. … Thus, within the context of a charge of criminal recklessness, pointing a loaded firearm is considered an action that creates a substantial risk of bodily injury to another person.
.
Our supreme court has also held that brandishing an unloaded firearm can create a substantial risk of bodily injury. …The Al-Saud court noted that: “The brandishing of a firearm in a congested area or during a dispute can create a variety of risks of bodily injury to others, regardless of whether the weapon is loaded.”


We find that these concerns equally apply to the case before the court.By pointing a loaded gun at Petro’s head, Nantz created a variety of risks that could have lead to serious bodily injury. In Upp v. State, … this court affirmed the defendant’s conviction for criminal recklessness. In that case, Upp asserted the defense of property defense, and claimed that although he fired his gun several times, he was not trying to hit the trespasser in his back yard. ... We concluded that even assuming that Upp was not attempting to shoot the trespasser, his behavior still created a substantial risk of bodily injury because Upp could have missed his aim or a bullet could have struck a stone, ricocheted and injured the trespasser.

Although Nantz did not fire his handgun as the defendant did in Upp, by pointing the gun at Petro’s head, the gun could have accidentally discharged or Petro could have grabbed the gun causing serious injury or death to one or both of these men. Further, under Ind. Code § 35-41-3-2(a), Petro may have arguably had the right to use deadly force to defend against Nantz’s action of pointing a loaded firearm at him, creating a substantial risk of injury. “‘Permitting one to threaten to use deadly force leads in dangerous progression to an unacceptable conclusion. Here, the victim would have been entitled to use deadly force to repel the perceived threat.” Commonwealth of Virginia v. Alexander, 260 Va. 238, 241, 531 S.E.2d 567, 569 (2000) (citation omitted). See footnote


Consequently, we conclude that Nantz’s conduct, pointing a loaded firearm at Petro’s head, was unreasonable force to use to protect his alleged property interest in the bulldozer. Thus, Nantz failed to prove his defense of property defense. Therefore, we find that the evidence was sufficient to support his conviction for pointing a firearm, as a Class D felony.

So, Nantz was convicted because he used unreasonable force which rose to the level of creating a substantial risk of bodily injury. This is, not coincidentally I’m sure, the statutory definition of “deadly force” (IC 35-41-1-7).

The court did, in fact, find that he used deadly force when he pointed the firearm at the other guy.

And here is the final ruling:"we conclude that Nantz’s conduct, pointing a loaded firearm at Petro’s head, was unreasonable force to use to protect his alleged property interest in the bulldozer. Thus, Nantz failed to prove his defense of property defense. Therefore, we find that the evidence was sufficient to support his conviction for pointing a firearm, as a Class D felony."

Again you are picking small pieces of the ruling OUT OF CONTEXT to further your argument without reading the entire thing.

The reason that he was unable to prove his defense of property claim & why it’s even relevant to the discussion of deadly force vs reasonable force can be found in the below quote:

Consequently, to establish his defense of property defense, Nantz was required to prove that he used reasonable force to prevent or terminate a trespass or to defend his property or his family’s property or property he was authorized to protect.

To establish a protection of property defense he had to show he used “reasonable force”. He didn’t. He used “deadly force”, which wasn’t reasonable under the circumstances.

I don’t agree with the ruling but that doesn’t make it go away. It’s still precedent.

IC 35-41-3-2

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.


Looking in the window and not being able to to give a legit answer to any of the question he was asked would lead me to believe he was casing your home therefore I believe you would of been justified pointing a firearm at him under the IC. If he was simply walking home he had no reason what so ever to be stopping and looking in your window.

The only problem is there was no attempted entry or no “attack”. The court above has already said that pointing a firearm is deadly force unless you can prove that it was objectively reasonable & necessary. From the above case I don’t see how a guy standing in your yard, even if it is by your window, could be construed as a threat requiring deadly force just because he couldn’t adequately answer your questions.

The forcible felony clause may also have come into play here since who knows what the trespasser had in mind.

You can’t impart some intent on the other person that doesn't have some basis in fact in order to justify the use of deadly force.

You need to have a reasonable belief that a forcible felony is about to occur & the only way to stop it is to use deadly force.

A forcible felony has a specific definition in the IC

IC 35-41-1-11
"Forcible felony" defined
Sec. 11. "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.

There was no use of force against a human, there was no threat of use of force against a human, there was no imminent danger of bodily injury.

In this case, no forcible felony occurred or was imminent. The guy was just standing there & "looking in the window". Which I will grant you is illegal but it doesn't constitute a forcible felony.

IANAL either, but I think that the "reasonable" standard is still a fairly good in this state. What I mean is that most Hoosiers would reasonably think that:

a) someone peeking into windows and, upon questioning, not being able to provide logical, coherent answers is up to no good and

Probably. It depends on the circumstances.

b) the use of a firearm to detain and hold said someone until LE arrives is perfectly acceptable

Maybe. It depends on the circumstances.

Doesn't mean a prosecutor with an axe to grind wouldn't take the case to trial, but it does mean he's got less than even chance of persuading a jury that the actions of the individual were up to the level of criminal.

I bet Nantz thought the same thing.

Umm ... No. Pointing a gun at someone is deadly force. It has been considered deadly force since, well, there have been guns.

I disagree. The above court case was from 2001. It specifically says that there has been no case law explicitly saying that pointing a firearm is deadly force before then.

The IC specifically says that pointing a firearm is reasonable force (not deadly force) in the specific instances listed.

Seeing as how I can’t see any way that pointing a firearm could EVER be considered as reasonable using the judges’ analysis, the judges’ made that part of the law up when they said that pointing a firearm is deadly force.

 

[CountryBoy19]

My cousin (lives in Indy) had this happen to him last year. He caught a "peeper", the peeper fled when he saw him retrieve his handgun. A description of the vehicle allowed IMPD to find them 5 or 6 blocks away. IIRC, 5 hispanic males, all armed.

Yes, you have every right to draw a firearm on a person that is trespassing on your property peeping in your windows. Why? Anybody peeping in windows is a possible threat. Hold them at gunpoint? As long as you don't physically detain them, ie, you tell them to lie down and they comply, you're ok.

 

[groovatron]

My cousin (lives in Indy) had this happen to him last year. He caught a "peeper", the peeper fled when he saw him retrieve his handgun. A description of the vehicle allowed IMPD to find them 5 or 6 blocks away. IIRC, 5 hispanic males, all armed.

Yes, you have every right to draw a firearm on a person that is trespassing on your property peeping in your windows. Why? Anybody peeping in windows is a possible threat. Hold them at gunpoint? As long as you don't physically detain them, ie, you tell them to lie down and they comply, you're ok.

Well.....apparently I'm out......I'll hit ya tonight...

 

[CountryBoy19]

Well.....apparently I'm out......I'll hit ya tonight...

No problem... I doubt it would even let me hit you back before I spread it around more. I don't leave rep for people too often so normally I get the "you must spread some rep around before..."

 

[LawDog76]

The only problem is there was no attempted entry or no “attack”. The court above has already said that pointing a firearm is deadly force unless you can prove that it was objectively reasonable & necessary. From the above case I don’t see how a guy standing in your yard, even if it is by your window, could be construed as a threat requiring deadly force just because he couldn’t adequately answer your questions.

PER the I.C.

"If the person reasonably believes that the force is necessary to prevent or terminate".

It doesn't say an attack/unlawful entry has to be happening. If they're looking in my windows, I take that as them plotting an attack. I will take action to PREVENT it as the I.C. says I can!

 

[usermax2000]

i agree if someones looking in your window or whatever you don't know if there armed or not. Protect your self and family...............

 

[revance]

This is an interesting argument. I think it all boils down to whether standing right beside the window and peeping in can reasonably be construed as the beginnings of a break-in.

I don't think you are covered to go running outside after the person. Remember, the saying is "stand your ground", not "go chase after".

The OP was in a slightly different situation because his wife had opened the door and stepped out. He needed to get between her and the perp.

As always, it depends on the situation. If someone walked up to the nearest window to me right this instant and started looking in, I would draw my gun and hold at the low ready. In my specific situation, I don't feel I would be justified to point it at the person. If they made any gesture that indicated they were going to attempt to break the window, I would raise it up and point it, and of course the instant that glass breaks I am going to fire. That is all assuming I catch the person looking and they don't just run up and break the window... in which case I would just draw and fire. If I was sitting right next to a window, I would immediately point at them until I got enough space between me and the window (assuming they haven't broken in by then). All about the specifics of your situation.

I do think this is a good opportunity for everyone reading to stop and think "what would I do this very instant" if someone walked up and started looking in your nearest window.

 

[finity]

PER the I.C.

"If the person reasonably believes that the force is necessary to prevent or terminate".

It doesn't say an attack/unlawful entry has to be happening. If they're looking in my windows, I take that as them plotting an attack. I will take action to PREVENT it as the I.C. says I can!

There I fixed your misplaced emphasis for you.


Here's how I see it possibly going down:

Prosecutor: What was the person doing when you fired your weapon at him?

LawDog76: he was standing outside my window.

Prosecutor: He was standing outside your window? Just...standing there?

LawDog76: Yes. Well...he was looking in.

Prosecutor: Was he trying to break in?

LawDog76: Not that I saw.

Prosecutor: Was he moving in a furtive or surreptitious manner which made you think he may try to break in?

LawDog76: Um...well he was just standing there but he was looking in my window.

Prosecutor: Did he have a weapon of any kind?

LawDog76: I don't know. I didn't see one but I assumed he did.

Prosecutor: What made you believe he had a weapon?

LawDog76: Well...he was standing outside my window.

Prosecutor: So since he was just STANDING outside your window you are trying to get us to believe you thought it was reasonable to shoot him & kill him?

LawDog76: I...I...guess so...but I asked him what he was doing there & he acted nervous & couldn't give me the answers I was looking for before I did it.

Prosecutor: Didn't you say that you were pointing a gun at him?

LawDog76: Yes.

Prosecutor: Do you think it's possible that he was nervous because you were threatening him with deadly force?

LawDog76:.............

Sorry. I can't see any evidence that deadly force was NECESSARY to be used on a guy who was JUST STANDING outside the window.

Could he have been plotting something? Sure.

I would liken the "reasonable belief" requirement to the "probable cause" requirement that LEO's have.

Without SOME sort of articulable evidence to make a reasonable person think that an attack/entry was imminent I could see you being in some serious trouble.

I'm all for using whatever means is necessary to protect yourself & your family from a legitimate threat but I just can't see someone just standing outside LOOKING in needing an immediate deadly force response.

 

[finity]

This is an interesting argument. I think it all boils down to whether standing right beside the window and peeping in can reasonably be construed as the beginnings of a break-in.

I don't think you are covered to go running outside after the person. Remember, the saying is "stand your ground", not "go chase after".

The OP was in a slightly different situation because his wife had opened the door and stepped out. He needed to get between her and the perp.

As always, it depends on the situation. If someone walked up to the nearest window to me right this instant and started looking in, I would draw my gun and hold at the low ready. In my specific situation, I don't feel I would be justified to point it at the person. If they made any gesture that indicated they were going to attempt to break the window, I would raise it up and point it, and of course the instant that glass breaks I am going to fire. That is all assuming I catch the person looking and they don't just run up and break the window... in which case I would just draw and fire. If I was sitting right next to a window, I would immediately point at them until I got enough space between me and the window (assuming they haven't broken in by then). All about the specifics of your situation.

I do think this is a good opportunity for everyone reading to stop and think "what would I do this very instant" if someone walked up and started looking in your nearest window.

+1

 

[finity]

i agree if someones looking in your window or whatever you don't know if there armed or not. Protect your self and family...............

This is kind of a silly argument.

I don't think "I don't know if they're armed or not" rises to the level of "reasonably believes deadly force is necessary".

I "don't know" if any person walking down the street is armed &/or ready to do me harm or not but that doesn't mean I can just pre-emptively kill every person I meet "just in case".

Your use of deadly force must be reasonably necessary.