Can You Shoot Him?

[ocsdor]

 

[Hornett]

Just adding my .

 

[GuyRelford]

It it completely legal to point a loaded gun at someone in ANY SITUATION where "REASONABLE FORCE" is legally justified, like in protection of your/your families' personal belongings. Pulling the trigger is deadly force, not pointing the gun.

This is generally true, so long as the force you are using (pointing the firearm) is specifically justified as "reasonable force" under IC 35-41-3-2 or IC 35-41-3-3, as required by IC 35-47-4-3. And you are entirely correct to focus on the issue of "reasonable force," as required by all three statutes.

"IC 35-47-4-3
Pointing firearm at another person
Sec. 3. (a) This section does not apply to a law enforcement officer who is acting within the scope of the law enforcement officer's official duties or to a person who is justified in using reasonable force against another person under:
(1) IC 35-41-3-2; or
(2) IC 35-41-3-3.
(b) A person who knowingly or intentionally points a firearm at another person commits a Class D felony. However, the offense is a Class A misdemeanor if the firearm was not loaded."

As I said in my earlier post, the portion of IC 35-41-3-2 that applies to this scenario is as follows:

"Use of force to protect person or property
Sec. 2. (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)."

Importantly, Section 3 of the statute also applies with respect to preventing the person's escape, and/or performing a citizen's arrest, after the BG has taken illegal possession of your wheels:

"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."

Here, you have probable cause to believe the BG has committed "theft," a Class D felony. So you are legally justified in using "reasonable force" against him to "effect an arrest or prevent [his] escape." And you would be exempt from the crime of "pointing a firearm."

I didn't address the "citizen's arrest" issue in my original answer, because just "pointing the gun" wasn't in my OP scenario - the shooter had already used "deadly force" by shooting the BG in the leg. But since it's been raised through this alternative hypothetical, I thought I'd discuss the point.

 

[Delmar]

Point but don't shoot unless the BG makes you. Got it!

 

[Shay]

Point but don't shoot unless the BG makes you. Got it!

You sound like you have a lot of questions that might be answered if you took Gun Lawyer's class coming up. I believe there is still room.

 

[GuyRelford]

You sound like you have a lot of questions that might be answered if you took Gun Lawyer's class coming up. I believe there is still room.

That's true!! Thanks, Shay.

The class is this Sunday, Oct. 4 at Eagle Creek Pistol Range - in IMPD's firearms training classroom. Check out Home Page. Just click on the ONLINE REGISTRATION button and look for the "INGO Special" Indiana Gun Law Class. (INGO members are getting a $50 discount.)

 

[truegrit]

what if you proceed to open a can of whip A$$ on him and he reaches for the tire iron he was using to steal your rims? note: I said you iniate the violence but the theif reaches for a weapon?

 

[kludge]

There is no "brandishing" in IN. Only "pointing a firearm".

There is however this:

(poTAYto, poTAHto)

IC 35-45-2-1
Intimidation
Sec. 1. (a) A person who communicates a threat to another person, with the intent:
(1) that the other person engage in conduct against the other person's will;
(2) that the other person be placed in fear of retaliation for a prior lawful act; or
(3) of causing:
(A) a dwelling, a building, or another structure; or
(B) a vehicle;
to be evacuated;
commits intimidation, a Class A misdemeanor.
(b) However, the offense is a:
(1) Class D felony if:
(A) the threat is to commit a forcible felony;
(B) the person to whom the threat is communicated:
(i) is a law enforcement officer;
(ii) is a judge or bailiff of any court;
(iii) is a witness (or the spouse or child of a witness) in any pending criminal proceeding against the person making the threat;
(iv) is an employee of a school corporation;
(v) is a community policing volunteer;
(vi) is an employee of a court;
(vii) is an employee of a probation department; or
(viii) is an employee of a community corrections program.
(C) the person has a prior unrelated conviction for an offense under this section concerning the same victim; or
(D) the threat is communicated using property, including electronic equipment or systems, of a school corporation or other governmental entity; and
(2) Class C felony if, while committing it, the person draws or uses a deadly weapon.
(c) "Threat" means an expression, by words or action, of an intention to:
(1) unlawfully injure the person threatened or another person, or damage property;
(2) unlawfully subject a person to physical confinement or restraint;
(3) commit a crime;
(4) unlawfully withhold official action, or cause such withholding;
(5) unlawfully withhold testimony or information with respect to another person's legal claim or defense, except for a reasonable claim for witness fees or expenses; (6) expose the person threatened to hatred, contempt, disgrace, or ridicule;
(7) falsely harm the credit or business reputation of the person threatened; or
(8) cause the evacuation of a dwelling, a building, another structure, or a vehicle.

 

[finity]

what if you proceed to open a can of whip A$$ on him and he reaches for the tire iron he was using to steal your rims? note: I said you iniate the violence but the theif reaches for a weapon?

The law doesn't allow for a claim of self-defense if the person is committing (or has just committed) a crime.

(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.

In this case you are justified in using "REASONABLE FORCE" to prevent the person from stealing your stuff. He is NOT JUSITIFIED in using any force to counter your lawful use of force because he has just (or is trying to) stolen your property. If he escalates the force you can respond in kind. To me, a tire iron is deadly force.

 

[LCSOSgt11]

It's nice to see that all of the folks that have posted here would follow the law to the letter, however:

1. The law is interpreted approximately 93 different ways in our state due
to each county having prosecutors that look at situations differently.

2. Depending on circumstances, we can probably be relatively sure that
with the facts presented, we would probably be arrested. The burden
of proof, and standard of evidence is different between being arrested
and convicted.

3. That's why a backup plan, i.e. pepper spray, civilian issue Taser, etc.
would be a bonus, as other less than lethal options can be utilized
before the deadly force option.

We should all consider what happens when an unarmed bad guy does not
follow simple clear instructions at the point of a gun. Most bad guys will
bank on someone not shooting them, at least in my experience.

Of course, there will certainly be exceptions. Certainly we CAN shoot him, "CAN" interpreted as being the physical ability to do something. The real question is SHOULD this bad guy be shot.....

 

[40calPUNISHER]

I would say shooting him in the leg is a no-no.

Q: What if instead of shooting him, you attempt a citizens arrest? If he struggles and starts to fight back (resists arrest), could you shoot him then?

I would still like to hear your insight on this GunLawyer.

 

[Jack Ryan]

You folks really nailed this one!

In other conversations, I have heard some folks refer to an intended non-lethal shot (to an extremity, for example) as something other than "deadly force." However, as many of you stated very clearly in your responses, shooting someone - no matter where - will virtually always be considered "deadly force" under Indiana's statutory definition:

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

It would be very hard to argue that any shooting did not "create a substantial risk of serious bodily injury."

So the question then comes down to whether the shooter was justified in using "deadly force."

Indiana does allow "reasonable force" to be used to protect property (like your rims), but "deadly force" must be independently justified:

"IC 35-41-3-2(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)."

Under these facts, it would be difficult (if not impossible) to justify the use of deadly force:

"(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."

Here, there was no threat of serious bodily injury to the shooter. The BG's hands were full with the rims, he was apparrenty unarmed, and he was walking away. And while a crime was being committed under these facts, it was clearly not a "forcible felony."

Indiana law defines "forcible felony" as follows:

"IC 35-41-1-11
"Forcible felony" defined
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 a result, because there is no "use or threat of force against a human being," or an "imminent danger of bodily injury" under these facts, we can't label this crime as a "forcible felony" and the use of deadly force would not be justified to prevent it.

For all these reasons, the many of you who concluded that this shooting was most likely not justified, and would probably subject the shooter to both criminal prosecution and civil liability, were exactly right - in my opinion.

Thanks for participating!

Guy

Wasn't there a guy in Indianapolis a few years ago who was washing his car or something like that, a BG jumps in the car and takes off, the owner drew his weapon and killed the BG driving away from him with his property.

If I remember correctly the guy was never prosecuted, though the dead BG's family gave the shooter a living heck. I don't remember what all happened in civil court.

 

[MolonLabe]

Shooting out the tire of the vehicle would most likely be charged as 3 or 4 separate crimes.

1 - Criminal recklessness with a deadly weapon
2- Criminal mischief - for the damage to the vehicle
3 - Pointing a firearm - i'm assuming that they were in or around the vehicle
4 - Disorderly conduct - for the likely panic that would ensue from the crowd of people reacting to your shot.

So no...bad idea, and yes, you'd go to jail.

 

[evansvillethompsongunner]

This is the best troll thread I've ever come across....

interesting to boot.

 

[7orelevn]

One thing that I always say is you cannot shoot someone over property. If you protect yourself of another person that is allowed. But never over property. If a person is breaking down your house door then you can defend your castle. But defend wheels on a car nope.

 

[Delmar]

One thing that I always say is you cannot shoot someone over property. If you protect yourself of another person that is allowed. But never over property. If a person is breaking down your house door then you can defend your castle. But defend wheels on a car nope.

You should be able to protect what is yours. The laws that say you can't are unjust!

 

[littletommy]

You should be able to protect what is yours. The laws that say you can't are unjust!

I agree wholeheartedly! That is why everyone on this board, and every law abiding gun owner everywhere should stay up on what their representitives at the local, state, and fed level are doing, and respond accordingly come election time.

 

[eirish2001]

You should be able to protect what is yours. The laws that say you can't are unjust!

I think car insurance would be your protection against theft. I don't think shooting this guy would be justified unless the situation escalated.

 

[U.S. Patriot]

Yes shooting someone who is unarmed, is setting yourself up for a bad road ahead. Now of course if he was to threaten you, with deadly force then you are justified. I hate theaves, just as much as the next. To me though property can always be replaced. Better to loose then go to the booty house, in my opinion.

 

[mskendall]

I think if after he dropped the wheels and you put a large steak knife in his hands, it would then be justified.