Protection of Property Question

[Magnum]

Say I am carrying as I exit a business (like a shopping mall or store) and find someone clearly breaking into my vehicle. My first thought is to stop the crime in progress, but first of all, what does the law say about this? Second, even if I have the legal wiggle room to draw/shoot, is this a scenario where the loss of your property would be a far better price to pay than having to deal with the legal aftermath of producing a weapon or shooting someone over a silly car and/or its contents?

I ask because a friend who has exactly my same car parked at a mall where I shop and he had an aftermarket stereo like I do. I say "had" because he returned to find someone had stolen it. My first thought was "Good thing that wasn't me or they would've been in jail if I walked up in the middle of it." Then as I thought through it I realized that a ~$200 stereo vs thousands i legal fees and the prospect of prison makes that ~$200 stereo feel like dropping a quarter in comparison. Perhaps there's already a thread on this I overlooked?

 

[superjoe76]

Yell at him first. The odds are he will run away in the opposite direction. Get a good look and good description of him and call the police.

If yelling causes him to head toward you and present a danger, then by all means draw and defend yourself.

 

[Stschil]

I can't say that I would slap leather over someone breaking into my vehicle in a public area. I would probably call 911 and then try to stop the crime. Most liken, though, if I called out, the BG would drop everything and run, then it's just observe and report.
Now, if it looked like the perp were close to my BUG, diff sitch. I would fire to prevent it getting into criminal hands.
I say this from the comfort of my porch swing, I could possibly react quite differently if I were in the actual situation.

 

[PapaScout]

Be a good witness and call the police. Your life is not in danger so no reason to shoot the guy.

 

[Kirk Freeman]

Is your question relating to defense of property or citizen's arrest powers? Or both?

 

[IndySSD]

Is your question relating to defense of property or citizen's arrest powers? Or both?

always the lawyer..... I like how you pointed out that very little of what he asked about had anything to do with what he initially asked without actually saying that.......

 

[RichardR]

IC 35-33-1-4
Any person
Sec. 4. (a) Any person may arrest any other person if:
(1) the other person committed a felony in his presence;
(2) a felony has been committed and he has probable cause to believe that the other person has committed that felony; or
(3) a misdemeanor involving a breach of peace is being committed in his presence and the arrest is necessary to prevent the continuance of the breach of peace.
(b) A person making an arrest under this section shall, as soon as practical, notify a law enforcement officer and deliver custody of the person arrested to a law enforcement officer.
(c) The law enforcement officer may process the arrested person as if the officer had arrested him. The officer who receives or processes a person arrested by another under this section is not liable for false arrest or false imprisonment.
As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982, P.L.204, SEC.7.

 

[GuyRelford]

Is your question relating to defense of property or citizen's arrest powers? Or both?

I was about to go into both, but we'll let the OP further define his question - and I'm sure I'll agree with your response!

Guy

 

[GuyRelford]

IC 35-33-1-4
Any person
Sec. 4. (a) Any person may arrest any other person if:
(1) the other person committed a felony in his presence;
(2) a felony has been committed and he has probable cause to believe that the other person has committed that felony; or
(3) a misdemeanor involving a breach of peace is being committed in his presence and the arrest is necessary to prevent the continuance of the breach of peace.
(b) A person making an arrest under this section shall, as soon as practical, notify a law enforcement officer and deliver custody of the person arrested to a law enforcement officer.
(c) The law enforcement officer may process the arrested person as if the officer had arrested him. The officer who receives or processes a person arrested by another under this section is not liable for false arrest or false imprisonment.
As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982, P.L.204, SEC.7.

Effecting a citizen's arrest is one thing. Using force - particularly "deadly force" or even "pointing a firearm" - to effect a citizen's arrest is quite another.

 

[RichardR]

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.
(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.
(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).

 

[jeremy]

If it happened to me I would not say a damn thing. I would just place a call to 911 with a detailed description of what was going on, describe the Douchebag and Friends, and possibly the Vehicle they would be getting into and leaving in...

What I think you SHOULD be able to do is not that though...

 

[Jay]

There's no way I'd advocate using deadly force to protect or defend unoccupied property. IC 35-41-3-2 subsection (a) says nothing about property. Defense of, or protection of persons, is quite a different situation.

 

[7.62]

Yell...scream...hell blow a rape whistle...but don't draw down on him.....there is a lot of bad roads that can lead to. If someone's life isn't in danger and you are not the the vehicle at the time then leave it to the police. That's why we pay taxes. Alot of the IC on this subject have already been posted...all good info. Just don't create a situation where you may have to pull the trigger when you could have just deterred the bad guy. As said before though if you yelling causes him to run at you with a weapon and you feel your life is in danger that changes everything. At the point I am going to dump a mag....but that's a whole different situation!

 

[eldirector]

I would not "shoot" someone for breaking into my vehicle, as much as I may want to. (Hey, I work hard to afford nice things!). I would definitely call 911. I would confront them if it would prevent more damage to my vehicle or if I thought I could hold them for the cops.

 

[lrahm]

Before Tennessee vs. Garner, officers could shoot at almost any fleeing felon. Now they have to pose a threat to you or pose a serious threat to someone else if you don't. Breaking into a car does not fit that category. Now if you approach them and he turns with a crowbar (within striking range) and says "I am going to kill you" that fits the bill. Some courts have looked at the distance and amount of threat that occurs,

 

[686 Shooter]

I caught someone breaking in to my car, I walked up behind him as he was going through the center console and asked "did you find anything good?", he tried to run, but failed to make it past me. I grabbed him and took him to the ground, he begged me not to hit him and I didn't. I ended up just releasing him, bottom line is, I stopped him from stealing from me, nothing was damaged. He was scared, a firearm was not necessary to scare him more, and jail is not going to make him a more productive citizen. Hopefully, he learned from his experience and didn't pursue a life of crime, because breaking in cars was not his strong suit.
You are not going to stop crime and killing every criminal won't work, because the higher unemployment is, the more criminals there will be for you to kill, you will run out of money for ammo before you get them all.

 

[Magnum]

Okay, I guess I was asking several questions. They have mostly all been answered, but in making a citizen's arrest can you use your firearm? I've always heard non-LEO's cannot just draw their gun to draw it, you have to have reason to believe your life is in danger and lethal force is the only way to avoid certain harm. So to more clearly define (in relation to this situation) my questions, they would be:

1) How would you avoid legal liability in this situation but still be decently certain they will face prosecution?

2) Is it your obligation to avoid confronting them since technically you would be escalating the situation by bringing confrontation/lethal force into the equation by walking up carrying?

3) If there is a weapon in your car (as someone pointed out would be their case) does that change the way you can/should respond? (ie BUG in the glove box)

I ask because I have realized this could just as easily have been me as it was him, and I am all about thinking through the most realistic scenarios I could possibly face (as I think we all are). I am assuming dialing 911 would be the best thing you could do first regardless of all other factors.

 

[7.62]

Okay, I guess I was asking several questions. They have mostly all been answered, but in making a citizen's arrest can you use your firearm? I've always heard non-LEO's cannot just draw their gun to draw it, you have to have reason to believe your life is in danger and lethal force is the only way to avoid certain harm. So to more clearly define (in relation to this situation) my questions, they would be:

1) How would you avoid legal liability in this situation but still be decently certain they will face prosecution?

2) Is it your obligation to avoid confronting them since technically you would be escalating the situation by bringing confrontation/lethal force into the equation by walking up carrying?

3) If there is a weapon in your car (as someone pointed out would be their case) does that change the way you can/should respond? (ie BUG in the glove box)

I ask because I have realized this could just as easily have been me as it was him, and I am all about thinking through the most realistic scenarios I could possibly face (as I think we all are). I am assuming dialing 911 would be the best thing you could do first regardless of all other factors.

Good questions but doesn't change my previous response. Even if I had one of my BUG in the car that's what my NRA firearms insurance is for...that is if he gets away....like Alot of people said just yelling that the cops are coming will scare most petty thieves. Don't take actions of a LEO unless you are one....save yourself the headache. Again if then the situation turns violent then its changes story. Have good insurance.....that way you don't have to worry about having an even better legal team!

 

[GuyRelford]

Quick answers, some of which has been posted:

The general rule in Indiana is that you can't use deadly force merely to property. Deadly force must be justified under the self defense statute, which means it must be necessary to: 1) protect you or others from serious bodily injury; 2) prevent the commission of a forcible felony; 3) prevent or terminate an illegal entry into or attack upon your home, curtilage or occupied motor vehicle; or 4) prevent or terminate the hijacking of an airplane.

So, under the scenario posted, if you can't use deadly force, can you use any force? The answer is that you can use "reasonable force" to protect property; however, at least one Indiana case says that pointing a firearm is not reasonable force to protect property and, in fact, is equated to the use of deadly force, since pointing a firearm creates a "risk of serious bodily injury" (the definition of "deadly force").

Separately, as mentioned, any person can effect a lawful citizen't arrest if a felony or a misdemeanor involving a breach of the peace has been committed in their presence and there is probable cause to believe the person being arrested committed it.

However, a person can only use force to effect a citizen's arrest or prevent escape in the case of a felony.

So, can you hold a person at gunpoint as part of a citizen's arrest? "Pointing a firearm" is a crime in Indiana, but one of the exceptions is when a person is using "reasonable force" in effecting a lawful citizen's arrest. Still, while you might be able to hold a person at gunpoint, you can't pull the trigger unless deadly force is separately justified under the self defense statute, mentioned above.

And, keep in mind, at least one Indiana decision has held that merely pointing a firearm is the equivalent of using "deadly force"; however, that case was not a "citizen's arrest" case, which leaves some ambiguity in this area.

Forgive me for not taking the time to include citations - but I'm in a bit of a rush. I'm sure others can supply them. Also - I've only discussed what's legal, not necessarily what's smart: a separate consideration as mentioned several times in this thread.

Guy

 

[Magnum]

Wow thanks TFT, that was very helpful, citations or not. It's bizarre to me that there is no precedent for pointing a firearm in making a citizen's arrest.