Are You Going to Jail? (The next installment)

[IndianaGTI]

It depends on two things. First and foremost, the jurisdiction. We have 92 counties in the state and each has its own prosecutor. Second, who you shot.

I recall the case of a young man who was waived to adult court as a juvenile but continued to steal cars. When the judge released the kid from jail the last time, the judge said, "Now ----, if you keep stealing cars, someone is going to shoot you."

The next time ---- came to court he had been shot. Apparently, he was initiating another young man into his made up gang and got caught stealing a car. The other kid stopped and ---- took off running. The homeowner "fired a shot straight down at the ground" with his 9mm handgun and a ricochet must have hit ---- who was 150 feet away at a dead run.

The homeowner was not charged. The next time ---- was caught fleeing the scene of an accident, he was identified by his limp.

 

[GuyRelford]

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:



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...

Keep in mind that the second burglar survived, and will likely testify. So the defendant's testimony won't be the only story that the jury hears, and the defendant wouldn't have to make "incriminating statements" for the jury to conclude that the defendant used deadly force merely to protect property.

I'm well familiar with Brand v. State (I teach my students about that case in Comprehensive Indiana Gun Law). The element that would be potentially refuted is the "reasonable fear" component - particularly when the prosecution would also be entitled to an instruction on the "defense of property" component of the self-defense statute.

And remember, I never said that this case wasn't winnable for the defense. In fact, I said there was a reasonable likelihood that the homeowner wouldn't even be charged. My motivation in posting this thread was simply: 1) to educate my fellow INGOers about "curtilage," 2) to emphasize the "reasonable" and "necessary to prevent or terminate" components of Indiana's Castle Doctrine, and 3) to point out that Indiana law does not allow the use of deadly force merely to protect property. If I've done that, the post was successful.

And I maintain that leaving your home and shooting two unarmed burglars as they're leaving with your property creates potential legal jeopardy for a homeowner. You are certainly free to disagree.

Guy

 

[finity]

And I maintain that leaving your home and shooting two unarmed burglars as they're leaving with your property creates potential legal jeopardy for a homeowner. You are certainly free to disagree.

Guy

No, I certainly agree with the above statement. As a matter of fact, in that situation, I think you would be more at risk than "potential" and rightly so.

The only problem is that, in your scenario, they weren't "leaving" from the viewpoint of the homeowner. They were running AT HIM. They may have known it but the homeowner didn't. AND he's not required to know the unknowable before deciding to defend himself. He just has to know what it reasonably looks like. For that sole reason I say he would likely not be convicted if he were even charged.

 

[Bill B]

Probably. IMO the curtilege does not extend to a storage shed that is far away from the house. However, if you can show that the entire yard is part of your living area (being fenced in helps, depending on type of fence) then you have a good chance of raising enough reasonable doubt to beat the rap.
If I was on the jury, you can bet their wouldn't be a conviction.

What do I win this time?

 

[GuyRelford]

No, I certainly agree with the above statement. As a matter of fact, in that situation, I think you would be more at risk than "potential" and rightly so.

The only problem is that, in your scenario, they weren't "leaving" from the viewpoint of the homeowner. They were running AT HIM. They may have known it but the homeowner didn't. AND he's not required to know the unknowable before deciding to defend himself. He just has to know what it reasonably looks like. For that sole reason I say he would likely not be convicted if he were even charged.

Two unarmed men, one with his hands occupied by carrying a heavy object, create a "reasonable belief" that deadly force is "necessary to prevent serious bodily injury" or the commission of a "forcible felony"? You're a lot more confident of that than I am, although as I said, there's certainly an argument to be made.

 

[jeremy]

Two unarmed men, one with his hands occupied by carrying a heavy object, create a "reasonable belief" that deadly force is "necessary to prevent serious bodily injury" or the commission of a "forcible felony"?

I think late at night, 2 Strange Men armed status is unknown, 1 apparently large enough to carry a Generator by himself approaching me inside my Property Fence...
Yeah I am going to be in fear of bodily Injury, possibly even severe bodily injury...

You're a lot more confident of that than I am, although as I said, there's certainly an argument to be made.

I think if you have an overzealous Prosecutor who is out to make a name for themselves you might be taken into a Courtroom. However, I feel a semi sober Public Defender could possibly beat this pretty easily and on a regular basis across this State...

 

[Mr Evilwrench]

What are you doing running out of ammunition with one of them still standing? This could easily turn from a burglary case to a missing persons case

 

[huntall50]

Not enough info., you did not mention the RACE of the shooter!

But more that likely, YES he will be doing time.

 

[EdC]

"And I maintain that leaving your home and shooting two unarmed burglars as they're leaving with your property creates potential legal jeopardy for a homeowner. Guy"

This is the lesson for me.

 

[Bert]

proves the need to shoot them both and have a good throw awy gun. put their prints on the mag. no questions asked

 

[IMakeGum]

Just as you get to the shed, the door opens and two men rush out. You can see that one man is carrying your new Honda generator and the other is empty-handed.
Guy

I think this is a great post and a great discussion....I understand and agree completely with the 'reasonable force' point that TFT made, but then wouldn't the idea of disparity of size either help or hurt the homeowner? For example, he is not an MMA badass and is short with slim build....then here come 2 men, one carrying a heavy generator by himself and another man (of unspecified size) running toward him....? The generator holding BG could easily drop the heavy item and bum rush the HO. Now it could be 2 against 1.....

Another ??, could shouting a warning at the BG (while aiming at him, just in case) to drop the item help prove that the HO had a reasonable fear for his life? (presuming the BG's kept running toward him)

 

[EdC]

proves the need to shoot them both and have a good throw awy gun. put their prints on the mag. no questions asked

Planting evidence is illegal.

Why risk that when there's probably a good shovel right there in the shed. One big hole, some lime, and you're done.

 

[jeremy]

Planting evidence is illegal.

Why risk that when there's probably a good shovel right there in the shed. One big hole, some lime, and you're done.

Actually, a little rock salt, ag lime and make sure the whole is deep enough to hit the water table....

Oh and if I remember correctly Ground Penetrating Radar can only hit done to 8'...

 

[7th Stepper]

I've heard that Californians who carry legally still keep an attorney on retainer in the event they have to use their gun because it's a guarantee they're at least going downtown even if they shoot the resurrected Bin Laden himself. Doesn't sound like a terrible idea if you have the means.

Ok, a clarity comment here. I spent most of 2010 in CA for medical reasons. While there, in the apartment complex where I was living, a certain toad took a liking to me. He was a drunken SOB, and I couldn't stand him. One night while helping my roommate take out the garbage, the drunken toad snuck up behind me and grabbed my butt. I turned around and was about to belt him one but thought better of it, not knowing the laws. Self defense against a sexual assault as far as I was concerned. I did manage to refrain from bumping him with the shopping cart we were using, thereby knocking him away from me, but not to the ground. I felt it would have been justified in what I thought was a situation where my rights were being infringed upon. And that I was in fear for my safety. I should mention here that I'm disabled, and obviously so. The drunk got up, made a snide remark ("I tripped and was just trying to steady myself" yea, right, NOT) and the roommate and I went back to the apartment and went inside.

Later on that night, we noticed there was quite a commotion going on outside, and the LEOs were there trying to stop a fight. Said toad had gotten into a "knock down drag em out" with his son, and the officers were trying to break it up, and sort it out. I waited until things settled down, and then went up to one of the officers and asked if I could get an answer to a question I had, regarding an earlier incident. The officer was nice, and listened to what I explained had gone on, complete with the toad putting his hands upon my person, in an unwanted sexual manner.

I asked if I was allowed to defend myself, by trying to push him away, slapping him, taking a swing at him, or just running over him with the cart, to get the point across that I had already told the toad to "go away and leave me alone!" My roommate told me later that I'd said "remove your hand from my body, or I'll remove it from yours!"(however, I had no reason to believe her). I was informed by the officer that I had no recourse whatsoever to defend myself from the toad laying his hands on me. If I slapped him, hit him, pushed him away, even grabbed a stick and poked him with it, I could, and most likely would, be arrested for assaulting HIM, instead of defending myself. I was told that I had no other choice but to try and get away from him, without touching him, and go back inside where I was staying. None! Nada! Nothing! No right of self defense whatsoever. And should he be so inclined, he could have had ME arrested for assaulting HIM by threatening to make him stay away from me.

I know that's not the case here, but when the prior post referred to the laws in CA, I thought this became relevant. Out there, I had no recourse whatsoever to defend myself, from any unwanted attention, or "I" would be the person arrested for the crime. Had I picked up a rock or something like that to try and hit him with it, I could have been arrested for attempted murder!

This is NUTS! Totally NUTS! I was the intended victim, but the laws protected the perp? And I was automatically rendered helpless? Or face criminal charges that would have landed me in jail, just for protecting myself? Let's just say that CA is one state I will NEVER set foot in again. Regardless of the situation. Which is sad, because I have relatives out there whom I dearly love, and would love to see again, but in order to do so, they'll have to fly HERE, because I'm certainly NOT going back out there! Oh, and you can under no circumstance, carry a weapon of any sort upon your person in CA, regardless of the reason. Unless you're an on, or off, duty LEO. Not even pepper spray.

So there you have it, self defense, ala CA style. The thought of it still makes me angry!
7th Stepper

 

[Mr Evilwrench]

Sounds like mexifornia's been taken over by the UK.

 

[IMakeGum]

Wow, 7th Stepper....what a ****TY situation. As a female, I can completely understand your frustration with this. I've been groped unwantedly also and threatened to pepper spray the guy and made a huge stink about the whole situation to the point the guy was so embarrassed he nearly sprinted away....n

(this was in chicago, and I had pepper spray with me. I think I even took it out and either showed it or told the guy what he'd be in for...can't recall exactly)

Personally, I'd be willing to take that trip downtown and get booked rather than getting molested or possibly worse. What if he didn't stop at groping you? I'm not trying to judge or criticize, but just putting in my that your personal safety is way more important than what legal consequence you'd face for defending yourself.... Trust your gut and instinct and fight for yourself should you ever face that ****ty situation again.....

Sorry it happened.... sometimes, men can be so disgusting

 

[Mr Evilwrench]

Yes we can One of those "better to be judged by twelve than carried by six", or "better to ask forgiveness than permission" things, eh?

 

[jeremy]

Yes we can One of those "better to be judged by twelve than carried by six", or "better to ask forgiveness than permission" things, eh?

Exactly!

 

[IMakeGum]

Yes we can One of those "better to be judged by twelve than carried by six", or "better to ask forgiveness than permission" things, eh?

YES!!! That's exactly right.....I'd rather take my chances with 12 or asking for forgiveness than getting groped, molested, followed or harassed--these could all lead to an escalation that would hurt me. Personally, wouldn't take my chances with that.....

 

[7th Stepper]

YES!!! That's exactly right.....I'd rather take my chances with 12 or asking for forgiveness than getting groped, molested, followed or harassed--these could all lead to an escalation that would hurt me. Personally, wouldn't take my chances with that.....

Thanks, I was beginning to wonder what the world had/was coming to with things like this going on. My first reaction was to backhand him, but unfortunately, gone are the days where I have the physical strength and balance to do that, and pull it off. My roommate was no help, she thought it was funny. She's lived there all her life (and I did until I was 36), and is used to this way of being thought of, and treated. Needless to say, she's no longer considered a "friend", and I'd known her for 27 years!

I still wonder to this day, whether if I'd been carrying, even pepper spray, (which is also illegal) I'd have had the self control NOT to use it! All I can say is that Thank God I don't live there anymore, and Thank God I DO live in a state where I AM allowed to defend myself, in any way I see fit, depending on how threatened I feel. I pity the poor souls who do live out there, they're so used to this type of treatment, they think it's "normal". And they wonder WHY the crime rate is so high? Hmmmm, doesn't take a genius to figure that one out! I couldn't get out of there fast enough once I was healed up enough to be able to travel.

I texted BOR and told him in all CAPS "GET ME THE H*** OUT OF HERE OR I'M GOING TO GO NUTS!!!!!". I had a ticket the next day, and flew home to the safety and sanity of a state where people have rights, and don't/aren't expected to follow along like cattle to the slaughter, and a husband who loves me and will protect me at any cost, esp if I'm unable to do so myself! At this point, I'm embarrassed to say that I was a CA native, now I just say "I'm originally from out of state", and leave it at that. We've been here long enough to qualify as Hoosiers anyway, and we're proud of that fact!

Thanks for the support, it is greatly appreciated!
Hugs,
7th Stepper

PS: When I told BOR about it later on that nite, I liked his solution to the whole problem. "2 to the chest, 1 to the head. Problem solved". He's a very rational and extremely intelligent. level headed person, but this was his wife who had been accosted. And he felt bad because he was to far away to do anything about it. So we made a pact, never again will we ever even set foot in such a bas-ackwards, irrationally thinking, place where people have no rights what so ever. The Socialist Republic of California! No thanks! Let the ocean have em, even the sharks wouldn't touch them, to much garbage!