Are You Going to Jail? (The next installment)

[jedi]

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.

Remember, the IC says you can use deadly force (paraphrasing) to stop an invasion or attack on your home or curtilage.
If your shed is part of your curtilage, then you're good to go, but that would be determined in court. Most likely the courts are gonna say "no" and your going down.
This isn't 100% relevant to a shooting case, but was the first case that I came across that discusses what a curtilage is

Taken from Holder v State
No. 87S05-0505-CR-194 SUPREME COURT OF INDIANA 847 N.E.2d 930; 2006 Ind. LEXIS 413

Bill B you know you can't play you took the course once!

mrjarrell and eldirector and Bill B have all hit it on the nail so to speak.
curtilage and reasonsable force are the 2 keys in this case.

As Bill B has shown us the Indiana definition of curtilage "varies" meaning it's not in IC but in case law and it's on a case by case basis. The further you go on your property from your fixed dewlling (ie. physcial building) the less curtilage you have.

For example your front porach (right outside your front storm window) and your drive way are both curtilage but your front porach is "more" since it's closer to your home. Another key factor of curtilage is the amount of use and privacy you get from said location. A side fenced in patio area would have a higher curtilage than your drive way.

In the OP's case the shed **BEHIND** your garage (ie. even further away from your house) is really stretching the curtilage definition. However is that shed a "storage shed" or a "party shed" (ie. do you have the generator in there to host parties, grill right outside, have a poker table in it etc.). It could be your "man cave" which is behind the garage to make it private from everyone else (street view and house view). So the curtilage could be higher here but again you are still stretching it.

Worse is the IC talks about reasonable force. Deadly force is allowed only when a felony crime is being committed. Stealing a generator (i have not looked up the IC) i don't think falls under a felony theif. Does it not have to be over $xxx for it to be a felony theif? (not sure if such a thing exisit). In any case a basic generator is just theif and when they came out running you were not in any immediate danger. Would a reasonable person feel bodly threat when they hold a firearm and the BGs do not? The BGs probably ran out after seeing you with a firearm coming towards the shed. They were in fear of their lives!

Reasonable force is the key phrase there and it's open to the interpretation of the arresting officers and the prosecutor. Was blasting them "reasonable"? In certain locales a jury is going to send you up the creek, if the prosecutor decides he can make another notch in his belt.

My opinion, is that this is a bad shoot.

Deadly force is defined in IC:
IC 35-41-1-7
"Deadly force"
Sec. 7. "Deadly force" means force that creates a substantial risk of serious bodily injury.

and

IC 35-41-1-25
"Serious bodily injury"
Sec. 25. "Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes:
(1) serious permanent disfigurement;
(2) unconsciousness;
(3) extreme pain;
(4) permanent or protracted loss or impairment of the function of a bodily member or organ; or
(5) loss of a fetus.

You can only use the above in specific circumstances, and that is to prevent seriously body injury on yourself or a third person, to prevent a forcible felony, and to prevent an attack on your home/curtilage/motor vehicle.

Everything else is "reasonable force", which then must be stuff NOT on the serious bodily injury list.

This was not a forcible felony. This was not your curtilage or home. You were not protecting yourself from an unlawful use of force.

You COULD have held them at gunpoint, as a citizens arrest.

Wouldn't that mean you were within the law, so you're not going to jail?

The shed is still on your property...

Probably not but that doesn't mean I'm not calling my attorney and doing what he says....which may include saying nothing and waiting to go downtown until he gets there.

Correct call he police report there was a shooting at your property and then call your atty and SHUT UP! See video in this post on why you do not talk to police P-E-R-I-O-D!

https://www.indianagunowners.com/fo...what_to_do_when_leo_stops_you.html#post915009

And to answer the question...under the IC no you should not be going to jail. You have right to defend that property without duty of retreat....including deadly force

IMO In this case only reasonable force could be used.

 

[shortyforty]

the way it reads is you were rushed/lunged at by two men who had every reason to try to escaspe,it does not say you shot them in the back its says ''Just as you get to the shed, the door opens and two men rush out'' sounds like an ambush to me

 

[cak387]

Worse is the IC talks about reasonable force. Deadly force is allowed only when a felony crime is being committed. Stealing a generator (i have not looked up the IC) i don't think falls under a felony theif. Does it not have to be over $xxx for it to be a felony theif? (not sure if such a thing exisit).

Theft is theft in the state of Indiana. It does not matter whether it is an $0.89 candy bar or $5,000.00 worth of groceries. Indiana does not have petty theft, however, some smaller amounts do get plea-bargained downed to conversion.

Going back to the original situation, my shed is directly behind my garage with about 3 feet to spare. I mow around my shed which a lot of courts have looked at since the 90's. By mowing around my shed, my curtilage is larger and should include the shed. However, my grandparents house has a shed that only has two trails going to it, one to the man door, and one to the larger, sliding door. They do not mow around it also which lessens their curtilage. If someone were to be inside mine, I should be able to defend my property, and even more so if the generator is used to make my livelihood. It would be harder to fight my grandparents case.

"Curtilage is the area to which extends the intimate activities associated with the sanctity of a man's home and the privacies of life and therefore has been considered part of the home itself for Fourth Amendment purposes." LE

LEO's have been able to use bright lines or mow-line rules to their advantage because they are able to search a building that is not mowed around on without a search warrant resulting in criminal charges, mostly for illegal drug labs. If you do not know mow around a building, you yourself do not consider that to be "your" property is what the courts seem to be ruling in favor of. However, the way to prevent that would be to put a fence up around your property, ensuring that is still your curtilage. Easier said then done however, especially when I live on ~1 acre while my grandparents live on ~50 acres.

 

[Phil502]

I would think you have to give them a second to decide if they give up or not.
If you yell freeze and they drop the genny and lie down, you can't shoot.
If you yell freeze and they keep running with or without the genny AWAY from you, you can't shoot.
If you yell freeze and they run toward you, I think it's reasonable to feel you were in danger, 2 on 1, BG's, thats sounding like self defense.

 

[Mr. Habib]

You don't have a second to give them. According to the OP's scenario, they are only 21 feet away. In a second they could be on top of you bashing your skull in with your generator.

 

[jedi]

I would think you have to give them a second to decide if they give up or not.
If you yell freeze and they drop the genny and lie down, you can't shoot.
If you yell freeze and they keep running with or without the genny AWAY from you, you can't shoot.
If you yell freeze and they run toward you, I think it's reasonable to feel you were in danger, 2 on 1, BG's, thats sounding like self defense.

Freeze?? Me no speko ingles. Gudge u tell senor crazy over ther da he no say para. Freeze que is da? Itz zummer time no snow.

sry phil u going to jail for not being PC!

 

[harrisonpainter]

I have never really understood the "holding people at gunpoint" scenario, unless you are an LEO of some sort. Basically, I have always been taught never to point my weapon at anyone unless I was ready to pull the trigger and end the threat.

Holding someone at gunpoint creates some serious safety issues. You could take your eyes off them for a split second and still be overtaken. You wife or children could come out not fully understanding what is happening or a neighbor could pop out type of thing. Also, the BG's could just be plum crazy and still rush you thinking you could shoot only one. There might be another BG lookout that could come up behind you, ect.....

I would think that you come out, scream for them to stop and get off your property. If they run away...Good....If they charge, seems like a 100% legal time to Boom. Boom.

However, best result would be to stay hidden, get a good description, and call 911.

 

[SMiller]

Yes, castle doctine does NOT apply as your shed is not attached to your house, you took the fight to them, should have stayed inside, called the law, and had the shotgun at the ready.

 

[Phil502]

Freeze?? Me no speko ingles. Gudge u tell senor crazy over ther da he no say para. Freeze que is da? Itz zummer time no snow.

sry phil u going to jail for not being PC!

I though they were Polish!

 

[Phil502]

You don't have a second to give them. According to the OP's scenario, they are only 21 feet away. In a second they could be on top of you bashing your skull in with your generator.

True, but I don't think it's reasonable to assume that they are going to harm you and that you should start shooting. At least thats how I think the judge is going to look at it. If it's on your porch, thats different.

 

[spec4]

OP, pleaase clarify, did they rush towards you? Did they see you? There was a somewhat similar case in Iroquois Co, IL a few years back. Man named James Brown lived in rural Beaverville. Early one morning he had a silent alarm go off in his shed. He took his shotgun and went to investigate. There was a pickup by the shed and a man was loading it up. There was a person who turned out to be a female in the drivers side of the truck. It was about 5 AM. Upon seeing Mr. Brown, the driver opened the doo and started to get out. Mr. Brown fired and killed her. The man took off into nearby fields and was later picked up by the police.

Iroquois County States atty Devine filed murder charges against Mr. Bown. The town of Beaverville held a fundraiser for Mr. Brown's legal fund. He was out on bond and was NOT disarmed because the sheriff obviously didn't want to disarm him. Before the case finally went to trial, the Bowns were harrassed several times by relative of the perps. Mr. Brown told me he never leaves his house unarmed. I attended as much of the trial as I could. At the end, SA Devine did his best to paint Brown as a killer. The defense atty did a great job in his final argument. The deceased perp was a crack head in her thirties. The man was a career criminal. The Browns live just south of a very low income township and folks in the country have had problems with burglaries. The jury acquitted Mr. Brown and last I heard the perps family was trying for a civil lawsuit. During the altercation, Mr. Brown was in a deep state of stress, over coffee he told me this and said he had no choice but to fire. He said "should I have waited for the flash of gunfire before firing"? He feared for his life. And I can tell you, this guy is no wimp.

 

[jedi]

u know what is so sad about your story SPEC4. Wonder how much Mr. Bown spent on his criminal trial and how much he will spend on his civil trial. All because trouble came into his life.

However from the OP's and your post and many others it seems the lesson to learn is property is just not worth it. Let them steal it you have insurance. The moment OP's man went out to investigate was the moment trouble enterd his life. is the stuff in the shed really worth the legal money you will pay?

If you have GOLD/SILVER in there OK. Oherwise that is why we have insurance seems to be the name of the game.

 

[jason765]

i would say deadly forced cant be justified if they dont pose a threat to your life, or the life of your family. you may not go to jail, but you might get a fine or probation

 

[jason765]

i would say deadly forced cant be justified if they dont pose a threat to your life, or the life of your family. you may not go to jail, but you might get a fine or probation

 

[T.Lex]

What about firing a "warning" shot into the ground to scare them away?

 

[jedi]

What about firing a "warning" shot into the ground to scare them away?

Hum.. from a local ordinance (at least in Griffith, IN) that is a no-no (ie. no discharge of firearms within the town unless at an approved range or per other IC laws (ie. self defense))

& as we have already stated deadly force in this case we don't think qualifies and firing a warning shot is still deadly force me thinks.

Granted you did not hit them nor was that your intent but me thinks it is still considered deadly force.

 

[mrjarrell]

What about firing a "warning" shot into the ground to scare them away?

We all know how that one turns out. Better to just kill them, right?

 

[Bill B]

Yes, castle doctine does NOT apply as your shed is not attached to your house, you took the fight to them, should have stayed inside, called the law, and had the shotgun at the ready.

You know, I looked @ about 20 cases searching for curtilage, not once did having a building attached to your house come up in any of those cases. Fences came up, and expectations of privacy came up, and IIRC, activities of living came up; but never an "attached building" or even "mowed area".
If you could provide a cite, I'd greatly appreciate it. As I said, I only looked at about 20 cases, and all those were Indiana Supreme Court cases; so I'm certain that there are others out there.

 

[HeadlessRoland]

never shoot a man in the back wolf wistle so he turns around first at least.

 

[thebishopp]

Trained athletes who could defend a RNC are not the type to rob tool sheds. People dont need to be so afraid of criminals. Far more often than not, people who rob/steal are kids or drug addicts.

You've been fighting since you were 8 and you dont have enough confidence in yourself or your abilities to take down a couple of nobodies. Take it from me, thats really dumb.

Many a "master" has fallen to a lucky punch. There is NO guarantee that you and your however many years as a ninja is going to win an encounter, especially outnumbered. Too many variables. You may say the odds are in your favor, but that is about it. There is a reason for the old warning "do not underestimate your enemy"... take it from me, THAT is "really dumb".