Are You Going to Jail? (The next installment)

[jeremy]

Well duh! Have you seen what I look like?

I am guessing uglier than your Avatar...

 

[lovemachine]

I am guessing uglier than your Avatar...

That so deserves a neg rep...

 

[jeremy]

That so deserves a neg rep...

Why cause the Rott looks better than you do?!

 

[Bill B]

I sharpened my pitch fork for nothing.

Dull pitchforks cause more pain, just sayin.

 

[jeremy]

Dull pitchforks cause more pain, just sayin.

Maybe but the wounds heal quicker from a dull one...

 

[Crashn2me1961]

I am new here and new at CCW and home defense ... so here goes.

a. If the good guy did not have a firearm, why would we not think that the bad guy(s) wouldn't put down what he had in his hand and think that two bad guys would not pose a threat to the good guy?

b. Maybe I missed it, but the homeowner didn't shoot anyone in the back? (that was a question.)

c. Seeing so many in here with way more knowledge of firearms than myself, I am thinking that training would be good but still, in the hands of a good prosecutor and having inadequate representation, training would not be as important as a good lawyer.

I can't believe there are so many differing opinions. Can the laws really be interpreted so loosely.

Not my first time around the block, but still a new kid on the block.

 

[Fargo]

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

I agree with almost all the above, but like any pain-in-the-arse lawyer must quibble a bit.

The crime these folks have committed is not "mere theft", it is textbook C felony Burglary* since they have broken into your structure with the intention of committing a felony, namely D felony Theft.

IC 35-43-2-1
Burglary
Sec. 1. A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony. However, the offense is:
(1) a Class B felony if:
(A) it is committed while armed with a deadly weapon; or
(B) the building or structure is a:
(i) dwelling; or
(ii) structure used for religious worship; and
(2) a Class A felony if it results in:
(A) bodily injury; or
(B) serious bodily injury;
to any person other than a defendant.
As added by Acts 1976, P.L.148, SEC.3. Amended by Acts 1977, P.L.340, SEC.42; Acts 1982, P.L.204, SEC.36; P.L.88-1999, SEC.2.

As such, I think the argument that this was a forcible felony is quite a bit stronger than if this was someone grabbing your bike you left out on the lawn. This is especially so since it is almost certainly on your curtilage. In fact, I believe there is some caselaw out there that suggests that popping your fence gate is adequate to satisfy the breaking and entering a structure element.

Either way, I think it is really going to come down to what county you are in. Many of the more rural/conservative prosecutors are going to be inclined to give you awards, some in the middle might run it by a grand jury, and in the big urban counties it is a total crapshoot with political ends likely to factor in heavily. This is especially so if there is a racial disparity or the shot up guys are juveniles.

Best,

Joe


*In fact, a really slick lawyer might even claim that it is an A felony since the fellow who died can't be a defendant because he is dead. However, I am more than a little dubious that would fly but it would be a fun argument.

 

[moischmoe]

As such, I think the argument that this was a forcible felony is quite a bit stronger than if this was someone grabbing your bike you left out on the lawn. This is especially so since it is almost certainly on your curtilage. In fact, I believe there is some caselaw out there that suggests that popping your fence gate is adequate to satisfy the breaking and entering a structure element.

Forcible felony has nothing to do with breaking and entering.

IC 35-41-1-11
"Forcible felony"
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.
As added by P.L.311-1983, SEC.12.

 

[Rookie]

Alright Guy, I want to issue a challenge. For the next scenario, one of the most debated topics on Ingo...

You go into a store to buy some groceries. As you enter the store, you notice a sign that states "no firearms". You ignore the sign and go pick up your items. As you bend over to grab a box of fruity pebbles, your shirt rides up exposing your firearm. The store manager sees it and calls the police. When the police arrive, the store manager insists you be arrested for trespassing. Do the police have the legal authority to arrest you?

 

[GuyRelford]

Alright Guy, I want to issue a challenge. For the next scenario, one of the most debated topics on Ingo...

You go into a store to buy some groceries. As you enter the store, you notice a sign that states "no firearms". You ignore the sign and go pick up your items. As you bend over to grab a box of fruity pebbles, your shirt rides up exposing your firearm. The store manager sees it and calls the police. When the police arrive, the store manager insists you be arrested for trespassing. Do the police have the legal authority to arrest you?

I've posted that one already! It's been a year or two.

I'll have to look it up!

 

[GuyRelford]

I agree with almost all the above, but like any pain-in-the-arse lawyer must quibble a bit.

The crime these folks have committed is not "mere theft", it is textbook C felony Burglary* since they have broken into your structure with the intention of committing a felony, namely D felony Theft.

As such, I think the argument that this was a forcible felony is quite a bit stronger than if this was someone grabbing your bike you left out on the lawn.

Joe - you are exactly right. I was too loose with my language. By saying "mere theft," I wasn't trying to distinguish Theft (which is still a felony) from Burglary, I was only trying to distinguish Burglary/Theft from a "forcible felony," such as Robbery. I think that distinction still holds.

I appreciate the input!

Guy

 

[iChokePeople]

Forcible felony has nothing to do with breaking and entering.

IC 35-41-1-11
"Forcible felony"
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.
As added by P.L.311-1983, SEC.12.

IANAL, but it would seem to me that you could make an argument that breaking into someone's 'curtilege' (or their enclosed living area) at night carries something akin to "imminent danger of bodily injury to a human being". Bad things happen when someone breaks into an occupied structure/area in the dark.

 

[moischmoe]

IANAL, but it would seem to me that you could make an argument that breaking into someone's 'curtilege' (or their enclosed living area) at night carries something akin to "imminent danger of bodily injury to a human being". Bad things happen when someone breaks into an occupied structure/area in the dark.

This is certainly true. I was just pointing out that "forcible felony" is not the act of beating down a door, or breaking a window to gain entry, it's an attack against a human being. If someone kicks in the door to your unattached, and unoccupied garage, grabs some tools, and runs out, there was no forcible felony.

 

[iChokePeople]

This is certainly true. I was just pointing out that "forcible felony" is not the act of beating down a door, or breaking a window to gain entry, it's an attack against a human being. If someone kicks in the door to your unattached, and unoccupied garage, grabs some tools, and runs out, there was no forcible felony.

Agree, I just wonder -- at what point does it BECOME 'forcible'. At what point does, for example, two men charging toward you on your property at night seem to the reasonable man to be 'imminent danger of bodily injury'? I think if I heard that story as part of a jury, it would be pretty easy to convince me that the homeowner feared for his life or believed that he was in imminent danger of bodily injury. If these two men were on a path that led to the occupied home, where the homeowner's wife/children were, *I* would tend to grant the homeowner even MORE leeway if given that option.

 

[Jeepcrazed]

There was an article in which a study was done on home defense shootings vs shooter sex and weapon type.

The study found the following:

Higher probablity of home self-defense not working
Male using a shotgun
Male using a semi-auto
Male using a revolver
Female using a semi-auto
Female using a shotgun
Female using a revolver
Lower probablity of home self-defense not working

Agree, I just wonder -- at what point does it BECOME 'forcible'. At what point does, for example, two men charging toward you on your property at night seem to the reasonable man to be 'imminent danger of bodily injury'? I think if I heard that story as part of a jury, it would be pretty easy to convince me that the homeowner feared for his life or believed that he was in imminent danger of bodily injury. If these two men were on a path that led to the occupied home, where the homeowner's wife/children were, *I* would tend to grant the homeowner even MORE leeway if given that option.

and if said homeowner was a woman, with her kid asleep inside the house...?

Since I don't have a revolver, I'll make sure to shoot with the shotgun first.

 

[finity]

So, I think what we have to ask ourselves about these scenarios is "what are my options here?"

Assuuming you've already made the decision to investigate the shed light being on & are 21 feet from the entrance of the shed with two guys running at you...

Option 1:

Do nothing because of the possibility that you could be convicted of manslaughter.

Option 2:

Shoot the BG(s) because you feel threatened by them.

Now let's analyze those options.

Let's start with option 2:

If you decide to shoot the BG(s) and are arrested & tried then what is the ACTUAL likelihood of being convicted? The state has to PROVE their case to a jury BEYOND A REASONABLE DOUBT that the homeowner had a REASONABLE fear of imminent threat of serious bodily injury.

Even if one BG had a large object in his hand, how long does it take to drop the object to continue the attack? The time for that to occur is measured in milliseconds. At that point the scenario becomes "two men who have already broken the law (so you have to believe that they MAY be willing to break other laws - including, at a minimum, assault), coming at you quickly, within the distance PROVEN by LE to be considered a physical threat if you don't act NOW!, at night and with NO WAY to KNOW what their intentions are".

Could the majority of people be so jaded against self-defense that they wouldn't even consider THE POSSIBILITY that the homeowner actually felt threatened? I just can't see it but I guess I could be wrong.

If you take the "option 1" route then...well, refer to my scenario above.

Are you going to take the chance (or maybe "trust" is a better word) that those two guys are just going to keep on running right past you without any further attack on you? If you're wrong then what are the consequences? Serious injury or death & maybe the death or injury of your family after you are no longer in a postion (probably THE best possible position at that instant in time) to protect them?

So I think what it all boils down to in these "really close calls" is do you trust in the "system" to work & that most people (or 1 person) on a jury would see a "reasonable" doubt about your guilt in INTENTIONALLY unjustifiably killing another human being? Or do you trust in the benevolence of two criminals rushing at you in the middle of the night with no idea of their intentions?

You only have a split second to make that decision. Make it NOW!

I already know which option I would choose.

How's that for a closing argument for the defense?

 

[GuyRelford]

So, I think what we have to ask ourselves about these scenarios is "what are my options here?"

Assuuming you've already made the decision to investigate the shed light being on & are 21 feet from the entrance of the shed with two guys running at you...

Option 1:

Do nothing because of the possibility that you could be convicted of manslaughter.

Option 2:

Shoot the BG(s) because you feel threatened by them.

Now let's analyze those options.

Let's start with option 2:

If you decide to shoot the BG(s) and are arrested & tried then what is the ACTUAL likelihood of being convicted? The state has to PROVE their case to a jury BEYOND A REASONABLE DOUBT that the homeowner had a REASONABLE fear of imminent threat of serious bodily injury.

Even if one BG had a large object in his hand, how long does it take to drop the object to continue the attack? The time for that to occur is measured in milliseconds. At that point the scenario becomes "two men who have already broken the law (so you have to believe that they MAY be willing to break other laws - including, at a minimum, assault), coming at you quickly, within the distance PROVEN by LE to be considered a physical threat if you don't act NOW!, at night and with NO WAY to KNOW what their intentions are".

Could the majority of people be so jaded against self-defense that they wouldn't even consider THE POSSIBILITY that the homeowner actually felt threatened? I just can't see it but I guess I could be wrong.

If you take the "option 1" route then...well, refer to my scenario above.

Are you going to take the chance (or maybe "trust" is a better word) that those two guys are just going to keep on running right past you without any further attack on you? If you're wrong then what are the consequences? Serious injury or death & maybe the death or injury of your family after you are no longer in a postion (probably THE best possible position at that instant in time) to protect them?

So I think what it all boils down to in these "really close calls" is do you trust in the "system" to work & that most people (or 1 person) on a jury would see a "reasonable" doubt about your guilt in INTENTIONALLY unjustifiably killing another human being? Or do you trust in the benevolence of two criminals rushing at you in the middle of the night with no idea of their intentions?

You only have a split second to make that decision. Make it NOW!

I already know which option I would choose.

How's that for a closing argument for the defense?

I think it's great, but here's a much shorter closing argument for the prosecution:

"Ladies and gentlemen, this case boils down to one simple, irrefutable fact: Mr. Finity valued his generator more than he valued human life. And as the judge will instruct you, that's a crime in Indiana - because you simply can't use deadly force to protect property.

There's a reason that Burglary does not carry the death penalty in Indiana. Do not allow Mr. Finity to be his own judge, jury and executioner.

A generator isn't worth nearly that much."

 

[jeremy]

I think it's great, but here's a much shorter closing argument for the prosecution:

"Ladies and gentlemen, this case boils down to one simple, irrefutable fact: Mr. Finity valued his generator more than he valued human life. And as the judge will instruct you, that's a crime in Indiana - because you simply can't use deadly force to protect property.

There's a reason that Burglary does not carry the death penalty in Indiana. Do not allow Mr. Finity to be his own judge, jury and executioner.

A generator isn't worth nearly that much."

First off, just another reason I am glad I live out in the Rural part of this State. I highly doubt the Prosecutor for my County would press this any further. Sometimes it is good to KNOW your elected officials...

Second, numerous times throughout the year I do value my Generator higher than someones life. My current Home is heated by Electricity only at this time with no other option to heat it available without MAJOR restructuring of the building. Ever seen someone who has died from Exposure...

 

[lrahm]

First off, just another reason I am glad I live out in the Rural part of this State. I highly doubt the Prosecutor for my County would press this any further. Sometimes it is good to KNOW your elected officials...

Second, numerous times throughout the year I do value my Generator higher than someones life. My current Home is heated by Electricity only at this time with no other option to heat it available without MAJOR restructuring of the building. Ever seen someone who has died from Exposure...

You are right, too many prosecutors...too many opinions.

 

[finity]

I think it's great, but here's a much shorter closing argument for the prosecution:

"Ladies and gentlemen, this case boils down to one simple, irrefutable fact: Mr. Finity valued his generator more than he valued human life. And as the judge will instruct you, that's a crime in Indiana - because you simply can't use deadly force to protect property.

There's a reason that Burglary does not carry the death penalty in Indiana. Do not allow Mr. Finity to be his own judge, jury and executioner.

A generator isn't worth nearly that much."

Eh, I could buy that argument if Mr. Finity had ever made any statements which would lead a reasonable person to conclude that he had actually killed the thief for the sole act of simply stealing his generator.

A claim of self-defense has to be DISPROVEN by the prosecution by showing BEYOND A REASONABLE DOUBT that one of the elements of "self-defense" were not present.

From Brand vs. State:

Essentially, self-defense is established if a defendant: (1) was in a place where the defendant had a right to be; (2) did not provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear of death or great bodily harm. See Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000); Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995).

The State carries the burden of disproving self-defense. Brown v. State, 738 N.E.2d 271, 273 (Ind. 2000).

Thus, once a defendant claims self-defense, the State bears the burden of disproving at least one of the elements beyond a reasonable doubt.

Converted file mgr

So, which element of the claim of "self-defense" is disproven beyond a reasonable doubt by the prosecutors closing argument?

Seeing as how the judge is also required to instruct the jury about the States' burden of proof in a self-defense case, if Mr. Finity has consistently said that the reason why he shot the thief was because he was in fear of imminent attack by two criminals rushing at him in the dark on his own property AND since the FACTS as presented by your scenario above supports that belief (as viewed from the perspective of the homeowner & what he could reasonably have known at that instant in time), I would find it hard to believe that MOST juries would feel that the state had proved their assertion that Mr. Finity only killed him for stealing his generator.

NOT GUILTY!

Next case...