Is an attempt to charge through me with my $5,000 or $6000 generator you stole out of my shed as I block the way not a forcible felony?
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Be sure to read this post! Beware of scammers. https://www.indianagunowners.com/threads/classifieds-new-online-payment-guidelines-rules-paypal-venmo-zelle-etc.511734/
Are You Going to Jail? (The next installment)
- Thread starter GuyRelford
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Is an attempt to charge through me with my $5,000 or $6000 generator you stole out of my shed as I block the way not a forcible felony?
RoyalTenenbaum
Expert
- Aug 26, 2010
- 1,094
- 36
It is now Tuesday, Do we need to send lovemachine to see you with a baseball bat?!
Where is the Answer?!
No probably not. Think about trying to defend that. Scares me. Besides all of that, even if your were able to legally shoot a person over a property crime, I am not going to do it. That is why I pay homeowners insurance.
The taking of another life should always be the very last extreme resort and only to protect your life or another innocent persons life. When that happens any person with common sense will know when that time has come. There will be no doubt in their mind and no need for internet discussion on if was legal and or justified.
GuyRelford
Master
My Answer
As mentioned by others, I think some prosecutors would decline to initiate charges in this situation, because there's a general reluctance to charge homeowners who are arguably acting in self-defense. However, in my view - strictly applying Indiana law - I believe that the use of deadly force in this hypothetical was not legally justified. Of course, it's a close call - which I try to achieve in all of these scenarios. (If they were obvious, they wouldn't be much fun.) So it could very well go either way - depending on the skills of the prosecution and the defense attorney. However, at the end of the day, I believe that you would very likely go to jail.
Here's my analysis:
The first question is whether this scenario falls within the "Castle Doctrine." As mentioned by several folks, this provison of Indiana's self-defense statute states the following:
"Use of force to protect person or property
* * *
(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." Ind. Code 35-41-3-2(b).
We know that the storage shed is not your "dwelling" or your "occupied motor vehicle," so the question becomes whether the shed is part of your "curtilage." This is important, because the Castle Doctrine provision of Indiana's self-defense statute does not require a person to have a reasonable belief that deadly force is necessary to prevent "serious bodily injury" or a "forcible felony" (as required by the general self-defense provision of 35-41-3-2(a).
There is very little Indiana authority that defines the term "curtilage" - and the authority that exists does not define the term in the context of the self-defense statute, but rather the parameters of a search warrant under the 4th Amendment of the U.S. Constitution and Section 11 of the Indiana Constitution. (The law generally provides that a search warrant that defines a residence allows police officers to search both the structure and its "curtilage.") So we have very little guidance in this area, but I think that it is most likely that the storage shed in this case would be found to be part of the home's "curtilage," primarily because it is in the yard of the home and enclosed within a privacy fence along with the dwelling.
In this regard, the legal definition of "curtilage" generally applies four factors:
1. The distance from the home to the place claimed to be curtilage (the closer it is to the home, the more likely it is to be curtilage);
2. Whether the area claimed to be curtilage is included within an enclosure surrounding the home (e.g., a fence);
3. The nature to which the area is put (if it is the site of "domestic activities," it is more likely to be curtilage); and
4. The steps taken by the resident to protect the area from observation by people passing by.
See Curtilage Law & Legal Definition
In our case, the existence of a 6' privacy fence around both the house and shed is strong evidence supporting factors 2 and 4 above.
Also, in Sowers v. State, No. (cited earlier by my friend T.Lex), the Supreme Court of Indiana found that a tent located in the yard of a dwelling fell within the "curtilage" of the dwelling, even without a fence. In so holding, the court emphasized that the existence of a fence would only reinforce the yard's status as "curtilage." The court also cited with approval several decisions from other jurisdictions that held that sheds located within the yard of a dwelling were part of the "curtilage" of the home. For these reasons, I believe it is most likely that the Castle Doctrine would apply here. Although Sowers was a 4th Amendment case, I believe it is powerful authority for the proposition that a shed located in a home's yard, surrounded by a fence with the home, is part of the home's curtilage.
So, does that mean the shooting was legal? Not necessarily.
Just because someone is illegally within your "curtilage" does not mean that deadly force is automatically justified. In all cases, the use of force must be "reasonable." In addition, even under the Castle Doctrine, deadly force must be "necessary to prevent or terminate" the "unlawful entry of or attack on the person's. . . curtilage." In our case, the two burglars were exiting the shed, and most likely intending to leave the premises with the stolen generator. (Although, admittedly, that is subject to dispute.)
The word "prevent" is likely irrelevant here, because the unlawful entry into the curtilage has already occurred. So was deadly force "necessary" to "terminate" the unlawful entry? I think a prosecutor would have a very powerful argument that no force was necessary to terminate the unlawful entry, since the two burglars were busily terminating the entry all by themselves. In other words, what would have likely happened if the homewner had never approached the shed? Isn't it most likely that the two thieves would have simply disappeared into the night with the stolen generator? If so, why was deadly force "necessary" to terminate the illegal entry - at a point when the thieves were already in the process of leaving the premises?
So, if deadly force was not justified under the Castle Doctrine, are you automatically going to jail? Not necessarily - because we still have the general self-defense provision of the Indiana statute:
"(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." Ind. Code 35-41-3-2(a).
Mere theft is not a forcible felony. Some folks have argued that the thief could be intending to attack the homeowner with the generator, and that is certainly an argument that could be made - but I don't think it would fly. I own a Honda generator - and realizing that they come in several different shapes and sizes - mine would make a lousy weapon. If I saw someone carrying my generator, my first thought would be that they were not an immediate threat to me because both hands were occupied with carrying a heavy object. That was actually my intent in the OP - that once the homeowner saw that one person was unarmed and the other was occupied with carrying the heavy generator, it would be difficult to argue that he had a "reasonable belief" that deadly force was "necessary" to prevent "serious bodily injury" or a "forcible felony."
But that doesn't mean that it is impossible - and a skilled defense attorney would have a legitimate shot at it. It's dark, they're criminals (for having broken into your shed), they're "rushing" out of the door as you approach, so they're heading in your direction (and they're right at the "Tueller distance" - 21 feet - defining an immediate threat), and you only have an instant to make the decision. It's very possible that a jury would buy it - but I still think it's a hard sell - primarily because they're unarmed, and one is carrying the generator.
At the end of the day, it appears that this scenario involves the use of deadly force to protect property (the generator)- and that is a big no-no under Indiana law:
"(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)." Ind Code 35-41-3-2(c). Subsection (a), referenced above, is the general self-defense statute.
In fact, in Nantz v. State, No., the Court of Appeals of Indiana held that even pointing a firearm is not considered "reasonable force" to merely protect property.
I certainly believe that reasonable minds can differ on this scenario - because it is such a close call. And again, some prosecutors might not even initiate charges, because a conviction is not at all certain. However, in my mind, the use of deadly force was not justified in this scenario - so yes, you are most likely going to jail.
Guy
As mentioned by others, I think some prosecutors would decline to initiate charges in this situation, because there's a general reluctance to charge homeowners who are arguably acting in self-defense. However, in my view - strictly applying Indiana law - I believe that the use of deadly force in this hypothetical was not legally justified. Of course, it's a close call - which I try to achieve in all of these scenarios. (If they were obvious, they wouldn't be much fun.) So it could very well go either way - depending on the skills of the prosecution and the defense attorney. However, at the end of the day, I believe that you would very likely go to jail.
Here's my analysis:
The first question is whether this scenario falls within the "Castle Doctrine." As mentioned by several folks, this provison of Indiana's self-defense statute states the following:
"Use of force to protect person or property
* * *
(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." Ind. Code 35-41-3-2(b).
We know that the storage shed is not your "dwelling" or your "occupied motor vehicle," so the question becomes whether the shed is part of your "curtilage." This is important, because the Castle Doctrine provision of Indiana's self-defense statute does not require a person to have a reasonable belief that deadly force is necessary to prevent "serious bodily injury" or a "forcible felony" (as required by the general self-defense provision of 35-41-3-2(a).
There is very little Indiana authority that defines the term "curtilage" - and the authority that exists does not define the term in the context of the self-defense statute, but rather the parameters of a search warrant under the 4th Amendment of the U.S. Constitution and Section 11 of the Indiana Constitution. (The law generally provides that a search warrant that defines a residence allows police officers to search both the structure and its "curtilage.") So we have very little guidance in this area, but I think that it is most likely that the storage shed in this case would be found to be part of the home's "curtilage," primarily because it is in the yard of the home and enclosed within a privacy fence along with the dwelling.
In this regard, the legal definition of "curtilage" generally applies four factors:
1. The distance from the home to the place claimed to be curtilage (the closer it is to the home, the more likely it is to be curtilage);
2. Whether the area claimed to be curtilage is included within an enclosure surrounding the home (e.g., a fence);
3. The nature to which the area is put (if it is the site of "domestic activities," it is more likely to be curtilage); and
4. The steps taken by the resident to protect the area from observation by people passing by.
See Curtilage Law & Legal Definition
In our case, the existence of a 6' privacy fence around both the house and shed is strong evidence supporting factors 2 and 4 above.
Also, in Sowers v. State, No. (cited earlier by my friend T.Lex), the Supreme Court of Indiana found that a tent located in the yard of a dwelling fell within the "curtilage" of the dwelling, even without a fence. In so holding, the court emphasized that the existence of a fence would only reinforce the yard's status as "curtilage." The court also cited with approval several decisions from other jurisdictions that held that sheds located within the yard of a dwelling were part of the "curtilage" of the home. For these reasons, I believe it is most likely that the Castle Doctrine would apply here. Although Sowers was a 4th Amendment case, I believe it is powerful authority for the proposition that a shed located in a home's yard, surrounded by a fence with the home, is part of the home's curtilage.
So, does that mean the shooting was legal? Not necessarily.
Just because someone is illegally within your "curtilage" does not mean that deadly force is automatically justified. In all cases, the use of force must be "reasonable." In addition, even under the Castle Doctrine, deadly force must be "necessary to prevent or terminate" the "unlawful entry of or attack on the person's. . . curtilage." In our case, the two burglars were exiting the shed, and most likely intending to leave the premises with the stolen generator. (Although, admittedly, that is subject to dispute.)
The word "prevent" is likely irrelevant here, because the unlawful entry into the curtilage has already occurred. So was deadly force "necessary" to "terminate" the unlawful entry? I think a prosecutor would have a very powerful argument that no force was necessary to terminate the unlawful entry, since the two burglars were busily terminating the entry all by themselves. In other words, what would have likely happened if the homewner had never approached the shed? Isn't it most likely that the two thieves would have simply disappeared into the night with the stolen generator? If so, why was deadly force "necessary" to terminate the illegal entry - at a point when the thieves were already in the process of leaving the premises?
So, if deadly force was not justified under the Castle Doctrine, are you automatically going to jail? Not necessarily - because we still have the general self-defense provision of the Indiana statute:
"(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." Ind. Code 35-41-3-2(a).
Mere theft is not a forcible felony. Some folks have argued that the thief could be intending to attack the homeowner with the generator, and that is certainly an argument that could be made - but I don't think it would fly. I own a Honda generator - and realizing that they come in several different shapes and sizes - mine would make a lousy weapon. If I saw someone carrying my generator, my first thought would be that they were not an immediate threat to me because both hands were occupied with carrying a heavy object. That was actually my intent in the OP - that once the homeowner saw that one person was unarmed and the other was occupied with carrying the heavy generator, it would be difficult to argue that he had a "reasonable belief" that deadly force was "necessary" to prevent "serious bodily injury" or a "forcible felony."
But that doesn't mean that it is impossible - and a skilled defense attorney would have a legitimate shot at it. It's dark, they're criminals (for having broken into your shed), they're "rushing" out of the door as you approach, so they're heading in your direction (and they're right at the "Tueller distance" - 21 feet - defining an immediate threat), and you only have an instant to make the decision. It's very possible that a jury would buy it - but I still think it's a hard sell - primarily because they're unarmed, and one is carrying the generator.
At the end of the day, it appears that this scenario involves the use of deadly force to protect property (the generator)- and that is a big no-no under Indiana law:
"(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)." Ind Code 35-41-3-2(c). Subsection (a), referenced above, is the general self-defense statute.
In fact, in Nantz v. State, No., the Court of Appeals of Indiana held that even pointing a firearm is not considered "reasonable force" to merely protect property.
I certainly believe that reasonable minds can differ on this scenario - because it is such a close call. And again, some prosecutors might not even initiate charges, because a conviction is not at all certain. However, in my mind, the use of deadly force was not justified in this scenario - so yes, you are most likely going to jail.
Guy
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Your analysis was good, but this is where I believe your conclusion went astray:
"In our case, the two burglars were exiting the shed, and most likely intending to leave the premises with the stolen generator. (Although, admittedly, that is subject to dispute.)"
They were exiting the shed, but were they (1) exiting the curtilage or (2) approaching the homeowner to do him harm?
So it boils down to what would a reasonable person in the shoes of homeowner believe as to what intent of the criminals was "most likely."
I don't know about anyone else, but I've got a reasonable doubt that the homeowner thought he was only protecting property, and didn't believe his life or limb was in danger.
I might be wrong, but doesn't the state's burden to prove all the elements of a crime "beyond a reasonable doubt" tip the balance heavily in favor of the homeowner in this case?
Good example, and thanks for posting it.
"In our case, the two burglars were exiting the shed, and most likely intending to leave the premises with the stolen generator. (Although, admittedly, that is subject to dispute.)"
They were exiting the shed, but were they (1) exiting the curtilage or (2) approaching the homeowner to do him harm?
So it boils down to what would a reasonable person in the shoes of homeowner believe as to what intent of the criminals was "most likely."
I don't know about anyone else, but I've got a reasonable doubt that the homeowner thought he was only protecting property, and didn't believe his life or limb was in danger.
I might be wrong, but doesn't the state's burden to prove all the elements of a crime "beyond a reasonable doubt" tip the balance heavily in favor of the homeowner in this case?
Good example, and thanks for posting it.
indytechnerd
Master
Yeah.... I got nothin' on that.
(Gotta spread some around before repping you again.)
I hit him for ya (with Rep that is)
GuyRelford
Master
That is absolutely correct. (And why it could certainly go either way.)
GuyRelford
Master
Under Indiana law, it actually boils down to two things: 1) did the homeowner believe that deadly force was necessary (to either terminate the illegal entry or to prevent serious bodily injury or a forcible felony); and 2) was that belief reasonable under the circumstances?
As I've posted before, here's an important quote from Hood v. State, 877 N.E.2d 492 (Ind. Ct. App. 2007).
"[O]ur Supreme Court has clarified that the phrase 'reasonably believes,' as used in the Indiana self-defense statute, requires both subjective belief that force was necessary to prevent serious bodily injury, and that such actual belief was one that a reasonable person would have under the circumstances. Littler v. State, 871 N.E. 2d 276, 279 (Ind. 2007). Thus, both objective and subjective standards are implicated . . . . "
I'll go Robert DeNiro/Al Capone all over him!
The Bear Jew would be better me thinks!
[ame]http://www.youtube.com/watch?v=aZzZu8nLUNI[/ame]
So after reading TFT post I think a life of crime (ie. stealing) and being unarmed is a good way to go. After all the homeowner can not shoot you for he will get in trouble with the law and you could probably sue him afterwards. 
Perhaps we need to update the IC to include the use of deadly force is his property is being stolen.
Perhaps we need to update the IC to include the use of deadly force is his property is being stolen.
Wow, someone actually sounds like an attorney 
QUOTE=Tactical Firearms Training;2097992]As mentioned by others, I think some prosecutors would decline to initiate charges in this situation, because there's a general reluctance to charge homeowners who are arguably acting in self-defense. However, in my view - strictly applying Indiana law - I believe that the use of deadly force in this hypothetical was not legally justified. Of course, it's a close call - which I try to achieve in all of these scenarios. (If they were obvious, they wouldn't be much fun.) So it could very well go either way - depending on the skills of the prosecution and the defense attorney. However, at the end of the day, I believe that you would very likely go to jail.
Here's my analysis:
The first question is whether this scenario falls within the "Castle Doctrine." As mentioned by several folks, this provison of Indiana's self-defense statute states the following:
"Use of force to protect person or property
* * *
(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." Ind. Code 35-41-3-2(b).
We know that the storage shed is not your "dwelling" or your "occupied motor vehicle," so the question becomes whether the shed is part of your "curtilage." This is important, because the Castle Doctrine provision of Indiana's self-defense statute does not require a person to have a reasonable belief that deadly force is necessary to prevent "serious bodily injury" or a "forcible felony" (as required by the general self-defense provision of 35-41-3-2(a).
There is very little Indiana authority that defines the term "curtilage" - and the authority that exists does not define the term in the context of the self-defense statute, but rather the parameters of a search warrant under the 4th Amendment of the U.S. Constitution and Section 11 of the Indiana Constitution. (The law generally provides that a search warrant that defines a residence allows police officers to search both the structure and its "curtilage.") So we have very little guidance in this area, but I think that it is most likely that the storage shed in this case would be found to be part of the home's "curtilage," primarily because it is in the yard of the home and enclosed within a privacy fence along with the dwelling.
In this regard, the legal definition of "curtilage" generally applies four factors:
1. The distance from the home to the place claimed to be curtilage (the closer it is to the home, the more likely it is to be curtilage);
2. Whether the area claimed to be curtilage is included within an enclosure surrounding the home (e.g., a fence);
3. The nature to which the area is put (if it is the site of "domestic activities," it is more likely to be curtilage); and
4. The steps taken by the resident to protect the area from observation by people passing by.
See Curtilage Law & Legal Definition
In our case, the existence of a 6' privacy fence around both the house and shed is strong evidence supporting factors 2 and 4 above.
Also, in Sowers v. State, No. (cited earlier by my friend T.Lex), the Supreme Court of Indiana found that a tent located in the yard of a dwelling fell within the "curtilage" of the dwelling, even without a fence. In so holding, the court emphasized that the existence of a fence would only reinforce the yard's status as "curtilage." The court also cited with approval several decisions from other jurisdictions that held that sheds located within the yard of a dwelling were part of the "curtilage" of the home. For these reasons, I believe it is most likely that the Castle Doctrine would apply here. Although Sowers was a 4th Amendment case, I believe it is powerful authority for the proposition that a shed located in a home's yard, surrounded by a fence with the home, is part of the home's curtilage.
So, does that mean the shooting was legal? Not necessarily.
Just because someone is illegally within your "curtilage" does not mean that deadly force is automatically justified. In all cases, the use of force must be "reasonable." In addition, even under the Castle Doctrine, deadly force must be "necessary to prevent or terminate" the "unlawful entry of or attack on the person's. . . curtilage." In our case, the two burglars were exiting the shed, and most likely intending to leave the premises with the stolen generator. (Although, admittedly, that is subject to dispute.)
The word "prevent" is likely irrelevant here, because the unlawful entry into the curtilage has already occurred. So was deadly force "necessary" to "terminate" the unlawful entry? I think a prosecutor would have a very powerful argument that no force was necessary to terminate the unlawful entry, since the two burglars were busily terminating the entry all by themselves. In other words, what would have likely happened if the homewner had never approached the shed? Isn't it most likely that the two thieves would have simply disappeared into the night with the stolen generator? If so, why was deadly force "necessary" to terminate the illegal entry - at a point when the thieves were already in the process of leaving the premises?
So, if deadly force was not justified under the Castle Doctrine, are you automatically going to jail? Not necessarily - because we still have the general self-defense provision of the Indiana statute:
"(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." Ind. Code 35-41-3-2(a).
Mere theft is not a forcible felony. Some folks have argued that the thief could be intending to attack the homeowner with the generator, and that is certainly an argument that could be made - but I don't think it would fly. I own a Honda generator - and realizing that they come in several different shapes and sizes - mine would make a lousy weapon. If I saw someone carrying my generator, my first thought would be that they were not an immediate threat to me because both hands were occupied with carrying a heavy object. That was actually my intent in the OP - that once the homeowner saw that one person was unarmed and the other was occupied with carrying the heavy generator, it would be difficult to argue that he had a "reasonable belief" that deadly force was "necessary" to prevent "serious bodily injury" or a "forcible felony."
But that doesn't mean that it is impossible - and a skilled defense attorney would have a legitimate shot at it. It's dark, they're criminals (for having broken into your shed), they're "rushing" out of the door as you approach, so they're heading in your direction (and they're right at the "Tueller distance" - 21 feet - defining an immediate threat), and you only have an instant to make the decision. It's very possible that a jury would buy it - but I still think it's a hard sell - primarily because they're unarmed, and one is carrying the generator.
At the end of the day, it appears that this scenario involves the use of deadly force to protect property (the generator)- and that is a big no-no under Indiana law:
"(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)." Ind Code 35-41-3-2(c). Subsection (a), referenced above, is the general self-defense statute.
In fact, in Nantz v. State, No., the Court of Appeals of Indiana held that even pointing a firearm is not considered "reasonable force" to merely protect property.
I certainly believe that reasonable minds can differ on this scenario - because it is such a close call. And again, some prosecutors might not even initiate charges, because a conviction is not at all certain. However, in my mind, the use of deadly force was not justified in this scenario - so yes, you are most likely going to jail.
Guy[/QUOTE]
QUOTE=Tactical Firearms Training;2097992]As mentioned by others, I think some prosecutors would decline to initiate charges in this situation, because there's a general reluctance to charge homeowners who are arguably acting in self-defense. However, in my view - strictly applying Indiana law - I believe that the use of deadly force in this hypothetical was not legally justified. Of course, it's a close call - which I try to achieve in all of these scenarios. (If they were obvious, they wouldn't be much fun.) So it could very well go either way - depending on the skills of the prosecution and the defense attorney. However, at the end of the day, I believe that you would very likely go to jail.
Here's my analysis:
The first question is whether this scenario falls within the "Castle Doctrine." As mentioned by several folks, this provison of Indiana's self-defense statute states the following:
"Use of force to protect person or property
* * *
(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." Ind. Code 35-41-3-2(b).
We know that the storage shed is not your "dwelling" or your "occupied motor vehicle," so the question becomes whether the shed is part of your "curtilage." This is important, because the Castle Doctrine provision of Indiana's self-defense statute does not require a person to have a reasonable belief that deadly force is necessary to prevent "serious bodily injury" or a "forcible felony" (as required by the general self-defense provision of 35-41-3-2(a).
There is very little Indiana authority that defines the term "curtilage" - and the authority that exists does not define the term in the context of the self-defense statute, but rather the parameters of a search warrant under the 4th Amendment of the U.S. Constitution and Section 11 of the Indiana Constitution. (The law generally provides that a search warrant that defines a residence allows police officers to search both the structure and its "curtilage.") So we have very little guidance in this area, but I think that it is most likely that the storage shed in this case would be found to be part of the home's "curtilage," primarily because it is in the yard of the home and enclosed within a privacy fence along with the dwelling.
In this regard, the legal definition of "curtilage" generally applies four factors:
1. The distance from the home to the place claimed to be curtilage (the closer it is to the home, the more likely it is to be curtilage);
2. Whether the area claimed to be curtilage is included within an enclosure surrounding the home (e.g., a fence);
3. The nature to which the area is put (if it is the site of "domestic activities," it is more likely to be curtilage); and
4. The steps taken by the resident to protect the area from observation by people passing by.
See Curtilage Law & Legal Definition
In our case, the existence of a 6' privacy fence around both the house and shed is strong evidence supporting factors 2 and 4 above.
Also, in Sowers v. State, No. (cited earlier by my friend T.Lex), the Supreme Court of Indiana found that a tent located in the yard of a dwelling fell within the "curtilage" of the dwelling, even without a fence. In so holding, the court emphasized that the existence of a fence would only reinforce the yard's status as "curtilage." The court also cited with approval several decisions from other jurisdictions that held that sheds located within the yard of a dwelling were part of the "curtilage" of the home. For these reasons, I believe it is most likely that the Castle Doctrine would apply here. Although Sowers was a 4th Amendment case, I believe it is powerful authority for the proposition that a shed located in a home's yard, surrounded by a fence with the home, is part of the home's curtilage.
So, does that mean the shooting was legal? Not necessarily.
Just because someone is illegally within your "curtilage" does not mean that deadly force is automatically justified. In all cases, the use of force must be "reasonable." In addition, even under the Castle Doctrine, deadly force must be "necessary to prevent or terminate" the "unlawful entry of or attack on the person's. . . curtilage." In our case, the two burglars were exiting the shed, and most likely intending to leave the premises with the stolen generator. (Although, admittedly, that is subject to dispute.)
The word "prevent" is likely irrelevant here, because the unlawful entry into the curtilage has already occurred. So was deadly force "necessary" to "terminate" the unlawful entry? I think a prosecutor would have a very powerful argument that no force was necessary to terminate the unlawful entry, since the two burglars were busily terminating the entry all by themselves. In other words, what would have likely happened if the homewner had never approached the shed? Isn't it most likely that the two thieves would have simply disappeared into the night with the stolen generator? If so, why was deadly force "necessary" to terminate the illegal entry - at a point when the thieves were already in the process of leaving the premises?
So, if deadly force was not justified under the Castle Doctrine, are you automatically going to jail? Not necessarily - because we still have the general self-defense provision of the Indiana statute:
"(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." Ind. Code 35-41-3-2(a).
Mere theft is not a forcible felony. Some folks have argued that the thief could be intending to attack the homeowner with the generator, and that is certainly an argument that could be made - but I don't think it would fly. I own a Honda generator - and realizing that they come in several different shapes and sizes - mine would make a lousy weapon. If I saw someone carrying my generator, my first thought would be that they were not an immediate threat to me because both hands were occupied with carrying a heavy object. That was actually my intent in the OP - that once the homeowner saw that one person was unarmed and the other was occupied with carrying the heavy generator, it would be difficult to argue that he had a "reasonable belief" that deadly force was "necessary" to prevent "serious bodily injury" or a "forcible felony."
But that doesn't mean that it is impossible - and a skilled defense attorney would have a legitimate shot at it. It's dark, they're criminals (for having broken into your shed), they're "rushing" out of the door as you approach, so they're heading in your direction (and they're right at the "Tueller distance" - 21 feet - defining an immediate threat), and you only have an instant to make the decision. It's very possible that a jury would buy it - but I still think it's a hard sell - primarily because they're unarmed, and one is carrying the generator.
At the end of the day, it appears that this scenario involves the use of deadly force to protect property (the generator)- and that is a big no-no under Indiana law:
"(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)." Ind Code 35-41-3-2(c). Subsection (a), referenced above, is the general self-defense statute.
In fact, in Nantz v. State, No., the Court of Appeals of Indiana held that even pointing a firearm is not considered "reasonable force" to merely protect property.
I certainly believe that reasonable minds can differ on this scenario - because it is such a close call. And again, some prosecutors might not even initiate charges, because a conviction is not at all certain. However, in my mind, the use of deadly force was not justified in this scenario - so yes, you are most likely going to jail.
Guy[/QUOTE]
GunSlinger
Master
I do believe you will be 'cuffed and stuffed'...but that's why you keep a through down knife right?
I'll go Robert DeNiro/Al Capone all over him!
Apparently you alone with a Baseball Bat is far more intimidating than all of us with Pitchforks and Torches...
"Should" go to jail. There was no justification to shoot to stop a felony not considered violent and that the homeowner clearly knew as such. But a jury could vote the other way as in the recent case of a guy who killed a burglar in his neighbor's yard when he was not threatened. Who can guess a jury? O.J. Simpson, Casey Anthony?
Apparently you alone with a Baseball Bat is far more intimidating than all of us with Pitchforks and Torches...
Well duh! Have you seen what I look like?
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