Can You Kill Him?

[Cygnus]

Good to see the answer. I think this was a valuable thing for all. A lot good points to consider here by all.

Reps to GL since I can't do it again for this thread.

 

[bigus_D]

I'll go ahead and throw my two cents back in since this thread continues...

All agree that BG#2 should not be considered a threat as he is running out (assuming the shooter/homeowner could verify that he was weapon free)... The shooting is justified if it is necessary to prevent the commission of a forcible felony. GunLawyer indicated that this is a poor legal argument because BG#2 is fleeing and is therefore no longer committing a forcible felony (even though he is still stealing property). I'm not a lawyer, but I assume that if BG#1 were to suddenly hop up and shoot the homeowner, BG#2 would still be charged with the murder because he was participating in the home invasion (even though he was trying to leave when the shooting happened). Therefore, I believe it is a stretch to insist that he is not still in the act of committing a forcible felony while he is trying to flee with the homeowner's property.

(I'm not suggesting that the best course of action is to shoot, just that the shooting could be justified through this argument... I would hope at least.)

I'd be interested to know if there is any case law that supports the sudden change in status from forcible felony to the lesser simple theft at the instant force stops being applied.

 

[newguyjosh]

now if I read it correctly earlier, gunlawyer is saying that the law is designed to prevent you from being raped in a civil suit if the shooting is found to be justifiable? Does this mean that it would automatically get thrown out of court since I didn't get arrested, or that I would still be paying big lawyer fees (no offense gunlawyer) trying to prove that it was justifiable?

 

[Cygnus]

now if I read it correctly earlier, gunlawyer is saying that the law is designed to prevent you from being raped in a civil suit if the shooting is found to be justifiable? Does this mean that it would automatically get thrown out of court since I didn't get arrested, or that I would still be paying big lawyer fees trying to prove that it was justifiable?

See: Simpson, Orenthal James

No criminal conviction but a wee bit of a civil suit

 

[ocsdor]

 

[Indy317]

#2. Guys 1 & 2 were threats at the beginning, threat 1 was neutralized, and threat 2 stopped being a threat as soon as he started retreating. So no, don't shoot them if they're running away.

#3. Use common sense

People...if someone is in _your_ home, they are threat. Until they are out of the home, to where you can't even see where they are, they are a threat. The idea that just because their back is turned towards you doesn't mean they are no longer a threat. Also, some folks seem to think that you can't use deadly force to protect property. That is true, but there is one exception:

IC 35-41-3-2 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.

Is the person running away still in the dwelling? Is the person's entry into the dwelling unlawful? Seems to be clear cut to me. There have been plenty of cases where people are cleared shooting through the door protecting their home.

 

[55spartan]

destroy the video and place the weapon back in the perps grasp, then you are in no trouble.

 

[newguyjosh]

See: Simpson, Orenthal James

No criminal conviction but a wee bit of a civil suit

But I'm pretty sure that did not take place in IN and had nothing to do with being a justified self defense shooting.

 

[GuyRelford]

People...if someone is in _your_ home, they are threat. Until they are out of the home, to where you can't even see where they are, they are a threat. The idea that just because their back is turned towards you doesn't mean they are no longer a threat. Also, some folks seem to think that you can't use deadly force to protect property. That is true, but there is one exception:

IC 35-41-3-2 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.

Is the person running away still in the dwelling? Is the person's entry into the dwelling unlawful? Seems to be clear cut to me. There have been plenty of cases where people are cleared shooting through the door protecting their home.

I think you should reread my answer on page 13 of the thread, and focus on "prevent or terminate." As I said in my answer, you've got a decent chance of winning this based on the argument that you're making - or not being charged at all. But there is risk involved, which was my whole point.

 

[Yamaha]

I think you should reread my answer on page 13 of the thread, and focus on "prevent or terminate." As I said in my answer, you've got a decent chance of winning this based on the argument that you're making - or not being charged at all. But there is risk involved, which was my whole point.

god help you in the civil case if you shoot BG#2 while he is fleeing, escapes, ends up in hospital, and he lives......it'll be a civil suit like the guy that cut himself on the homeowners window. Best advice, don't

 

[cosermann]

Great thread. Thanks to everyone! Many of us can agree, in analyzing this situation under no stress and with all our free time available to do so, that BG2 is no longer a threat. Consciously, I would like to think that I would not not target him as he's running out the door.

BUT, these situations are very dynamic, the timeline is VERY short, and with the adrenaline running, biologically it DOES take a certain period of time to "switch off" your reaction. It does not happen instantly and one could very easily shoot BG2 during our physiological "autopilot" (if you will) response to the threat. In other words, you may not be able to turn off your motor response fast enough. It takes time to STOP pulling the trigger - about half a second (longer if one includes reacting and deciding based on complex stimuli, maybe 2 to 3 additional pulls of the trigger). Combine this with all the other sensory and physiological responses to stress going on, and well . . .

If that happened, I'd make sure my lawyer knew about the Tempe Study and had access to information such as the following articles if legal problems arose as a result.

http://www.forcescience.org/articles/tempestudy.pdf

http://www.forcesciencenews.com/visuals/newdev.pdf

http://www.expertcop.com/Survey%20Research%20Human%20Factors%20Related%20To%20Lethal%20Force%20Encounters.pdf

http://www.forcescience.org/articles/isyourshootingclean.pdf

http://www.forcescience.org/articles/mentalchronometry.pdf

http://www.forcescience.org/articles/shotinback.pdf

http://www.forcescience.org/articles/tellyourprosecutor.pdf

Keep 'em coming GunLawyer!

 

[ArmedProgrammer]

Being from Washington County - I'd have to add that it depends if BG#2 is related to the Prosecutor! (no disrespect intended to our current one - probably a right reasonable dude for all I know). After all - there seems to be only three or four last names in our phone book...

I'm not saying - I'm just saying...

 

[POTI]

He is in my house and had the intent of doing me harm he is dead.

Remember that guy who was drunk and came into someones house by mistake he got smoked and no charges.

 

[GuyRelford]

Great thread. Thanks to everyone! Many of us can agree, in analyzing this situation under no stress and with all our free time available to do so, that BG2 is no longer a threat. Consciously, I would like to think that I would not not target him as he's running out the door.

BUT, these situations are very dynamic, the timeline is VERY short, and with the adrenaline running, biologically it DOES take a certain period of time to "switch off" your reaction. It does not happen instantly and one could very easily shoot BG2 during our physiological "autopilot" (if you will) response to the threat. In other words, you may not be able to turn off your motor response fast enough. It takes time to STOP pulling the trigger - about half a second (longer if one includes reacting and deciding based on complex stimuli, maybe 2 to 3 additional pulls of the trigger). Combine this with all the other sensory and physiological responses to stress going on, and well . . .

If that happened, I'd make sure my lawyer knew about the Tempe Study and had access to information such as the following articles if legal problems arose as a result.

http://www.forcescience.org/articles/tempestudy.pdf

http://www.forcesciencenews.com/visuals/newdev.pdf

http://www.expertcop.com/Survey Research Human Factors Related To Lethal Force Encounters.pdf

http://www.forcescience.org/articles/isyourshootingclean.pdf

http://www.forcescience.org/articles/mentalchronometry.pdf

http://www.forcescience.org/articles/shotinback.pdf

http://www.forcescience.org/articles/tellyourprosecutor.pdf

Keep 'em coming GunLawyer!

Wow. I have now been through most of these articles, and I am saving the rest. What a great resource!! Reps to you, sir!!

 

[Viking Josh]

Problem officer?

 

[finity]

While justified, you're still gonna get raped through the "justice" system & if he has any living relatives who liked him, you're going to be sued for wrongful death. Which is a crock of crap.

These sentiments keep getting voiced every time a scenario of this sort is discussed.

In IN I don't think that's true. GL, do you have any examples of a property owner (or any one else for that matter) who was involved in a legal SD shooting/killing who was later found liable in civil court either before or after the the current "castle doctrine" law was codified?

My point is that the fear of a civil suit, as long as you follow the letter of the law, is not as real as many people think it is. Especially in IN. If you hesitate to act to save your life or others out of (a probably unreasonable ) fear of a civil suit you could be dead anyway.

Make sure you know the law & follow it to the letter in a SD situation & don't worry about the civil side.

Assuming Texas law and the Indiana law are the same (probably aren't) then it should be legal to shoot BG2. Joe Horn case as reference: Joe Horn shooting controversy - Wikipedia, the free encyclopedia

Texas law & IN law ARE NOT THE SAME. Every state is different. Basing your legal decisions on the laws of another state because you read about it on the internet is really asking for trouble.

Nope, you no longer have a duty to retreat, I could be wrong but doesn't your "castle" also include any land you own?

Not "any land you own" but only the land immediately surrounding your house (like your yard - "where common domestic activities occur" or something like that). It's called 'curtilage'. There is a case where this is defined in IN law. I'll see if I can find it again & post it.

You can't "just shoot" someone for entering your property without your permission except under strictly defined circumstances.

I will not assume that he does not have a second firearm or buddies outside... I too will not assume this is the last time he will be at my "castle".

I don't think you're allowed to make up stuff in your head to justify the use of deadly force. You have to 'reasonably' know it before hand. If that was the case you could make a case for 'any' shooting because of something you thought the person 'might do in the future' even though there was no evidence for it.

After having re-read the Castle Doctrine, I believe the second guy will get you in trouble... I do however think you could not be in trouble if you had chosen to place the shot elsewhere (i.e. non-lethal)

IN law doesn't make a distinction of 'where' the bullet hit. Shooting at someone (or even stabbing them) is considered deadly force whether you hit them in the leg or chest. If you aren't justified in using deadly force on someone, then just 'shooting them in the leg' won't prevent you from being charged. I would propose that it may elevate your risks of being charged due to the fact that the prosecution could reasonably argue that you didn't really feel in fear of death or SBI because you just wanted to injure them (that is conjecture since I don't have any proof either way - but either way it's not going to help you & may hurt you more). In SD you shoot to stop the threat, whether they die or not is immaterial.

Since BG 1 is presumably dead isn't BG2 now guilty of murder, since BG1 died in the commission of a felony? Can't you stop a murderer from fleeing?

Yes, you can stop a murderer from fleeing but only by using 'reasonable force' not 'deadly force' unless they also fall under the same justification for deadly force as stated previously (i.e. reasonable fear of SBI or death):

IC 35-41-3-3
Use of force relating to arrest or escape
Sec. 3. (a) A person other than a law enforcement officer is justified in using reasonable force against another person to effect an arrest or prevent the other person's escape if:
(1) a felony has been committed; and
(2) there is probable cause to believe the other person committed that felony.
However, such a person is not justified in using deadly force unless that force is justified under section 2 of this chapter.

my only question is the "forcible felony" issue. from a legal standpoint, wouldnt the intent and beginning determine if the felony was forcible, rather than the very end?

for example, if a guy goes into bank and presents a gun, then drops the gun or has it wrestled from him by a guard/patron/employee, but escapes with the bag of cash, is this not still armed robbery as he presented/pointed a firearm when the felony began?

i am no lawyer, and i'm not advocating shooting #2 if he is exiting, but it seems odd to me that the intent/nature of a crime can change because the BG starts screaming.

Its the same with the exclusion of someone being able to use the SD defense if they were involded in mutual combat. If you are in a mutually agreed upon fight & you kill the other guy you can't use SD as an excuse. BUT...you can restore your right to SD IF you withdraw from the fight, in no uncertain terms, & the other person continues or escalates the conflict.

(e) Notwithstanding subsections (a), (b), and (c), a person is not justified in using force if:
(1) the person is committing or is escaping after the commission of a crime;
(2) the person provokes unlawful action by another person with intent to cause bodily injury to the other person; or
(3) the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.

Also, tharlow514, you used this as a reason to not be allowed to use SD. Your conclusion was correct but not based on the above part of the IC. The above is JUST for excluding people (#1) who are already doing something illegal from being able to claim SD against someone else (#2)who is protecting themselves (#2's) from their (#1's) illegal activity.

Example: BG pulls a gun to rob me. I pull a gun to protect myself. BG shoots me & then tries to use SD as a justification for shooting me. NOPE.

See: Simpson, Orenthal James

No criminal conviction but a wee bit of a civil suit

1. He did not kill them in SD. There is no legal protection from wrongful death outside of a SD scenario.

2. I'm not sure California has the "Castle Doctrine".

No comparison.

People...if someone is in _your_ home, they are threat. Until they are out of the home, to where you can't even see where they are, they are a threat. The idea that just because their back is turned towards you doesn't mean they are no longer a threat. Also, some folks seem to think that you can't use deadly force to protect property. That is true, but there is one exception:

IC 35-41-3-2 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.

Is the person running away still in the dwelling? Is the person's entry into the dwelling unlawful? Seems to be clear cut to me. There have been plenty of cases where people are cleared shooting through the door protecting their home.

No. You are NOT PROTECTING YOUR PROPERTY. You are protecting the people in it. That's why the IC says 'OCCUPIED MOTOR VEHICLE' not just MV. If there's no one in your car when it's broken into or stolen, you can't use deadly force on the thief.

The IC is very clear that you can't use deadly force to protect property (ANY PROPERTY) unless you or someone else is ALSO in fear of SBI or death.

The 'castle doctrine' law above only gives you a presumption of SBI or death when someone breaks into your home, business or occupied car because if someone is willing to be so bold as to do that then they are more than likely willing to cause you harm as well.

god help you in the civil case if you shoot BG#2 while he is fleeing, escapes, ends up in hospital, and he lives......it'll be a civil suit like the guy that cut himself on the homeowners window. Best advice, don't

Do you have a link to this or is this just "i heard it from...who heard it from...who's brother said..."?

He is in my house and had the intent of doing me harm he is dead.

Remember that guy who was drunk and came into someones house by mistake he got smoked and no charges.

True, but the guy wasn't RETREATING at the time either.

 

[roscott]

Wow. Lotsa good stuff in this thread.

One little question left if Gun Lawyer will patronize us a bit longer:

Deadly force vs. reasonable force
I notice the two are used at different times in the statutes. What constitutes each? If only reasonable force is legal, does that mean I can't shoot him but I can pistol whip him?

 

[Prometheus]

For everyone saying you should not shoot BG2 because he is running away (on moral grounds), I offer this:
"All that is necessary for the triumph of evil is that good men do nothing" Edmund Burke

We have come to this point today because of the indifference of good men and "passing the buck" to someone else (the next victim or the police).

Great thread and good reasons to shoot or not shoot based on the law... as to the proported moral high ground of not shooting BG2 in the back? They fall far short of the duty of good men to stop evil. Stop shirking your responsibilites and 'passing the buck'.

Kudos to Gunlawyer for the thread.

 

[Indy317]

For everyone saying you should not shoot BG2 because he is running away (on moral grounds), I offer this:
"All that is necessary for the triumph of evil is that good men do nothing" Edmund Burke

We have come to this point today because of the indifference of good men and "passing the buck" to someone else (the next victim or the police).

Great thread and good reasons to shoot or not shoot based on the law... as to the proported moral high ground of not shooting BG2 in the back? They fall far short of the duty of good men to stop evil. Stop shirking your responsibilites and 'passing the buck'.

Interesting concept. My real question is: What is stopping BG2 from pulling a gun from his waist ban (in the front, where you can't see what he/she is grabbing), pointing the gun to the rear, and opening fire. A person could do this within a split second, meaning you _could_ have bullets coming your way within a split second. Are you going give a person who is _in_ your home that opportunity?

I see it both ways. I understand _not_ shooting someone "in the back." I really don't agree that someone "running away" or even running to the front door is "retreating." The only person who knows if they are really retreating from the property entirely, or only retreating so they can re-group and re-attack is the person running. Since no one is a mind reader, do you give that person the opportunity to get to a point of safety, giving them a moment or two to decide if they want to re-attack you? Maybe they just saw their brother get blown away, and instead of a robbery, the person no longer cares about robbing you, now it is just revenge for killing their brother...so the whole point of running to their car wasn't to get away, it was to get some gas and matches to burn your home down? Or to get a weapon with larger magazine capacity so they can just start shooting up your home? The idea that a person retreating is always retreating in a fashion that you are no longer in danger is not the attitude to have. If you let them retreat, that is your call if you feel you are not in danger, but obviously don't let your guard down. Such a person could easily return within moments to do you harm.

 

[finity]

Interesting concept. My real question is: What is stopping BG2 from pulling a gun from his waist ban (in the front, where you can't see what he/she is grabbing), pointing the gun to the rear, and opening fire. A person could do this within a split second, meaning you _could_ have bullets coming your way within a split second. Are you going give a person who is _in_ your home that opportunity?

I see it both ways. I understand _not_ shooting someone "in the back." I really don't agree that someone "running away" or even running to the front door is "retreating." The only person who knows if they are really retreating from the property entirely, or only retreating so they can re-group and re-attack is the person running. Since no one is a mind reader, do you give that person the opportunity to get to a point of safety, giving them a moment or two to decide if they want to re-attack you? Maybe they just saw their brother get blown away, and instead of a robbery, the person no longer cares about robbing you, now it is just revenge for killing their brother...so the whole point of running to their car wasn't to get away, it was to get some gas and matches to burn your home down? Or to get a weapon with larger magazine capacity so they can just start shooting up your home? The idea that a person retreating is always retreating in a fashion that you are no longer in danger is not the attitude to have. If you let them retreat, that is your call if you feel you are not in danger, but obviously don't let your guard down. Such a person could easily return within moments to do you harm.

The problem is you can't shoot someone for something they might do in the future.

The threat has to be imminent.

IC 35-41-3-2
Use of force to protect person or property
Sec. 2. (a) A person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.

If you shoot someone for some feared future attack you better have a very compelling reason or some strong evidence to support your theory.