Reasonable Force / Drawing and not firing / Warning Shot

[MikeDVB]

Is simple theft a felony? I dont think it is.

Yes, it's a felony:

IC 35-43-4-2
Theft; receiving stolen property
Sec. 2. (a) A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony. However, the offense is a Class C felony if:

My ex-wife actually stole a few dollars from Wal-mart while she worked there - and the defense attorney made it clear that stealing even $0.01 in Indiana is a **felony**. Most states have a minimum for a felony be it $1,000 or $25,000. In Indiana - any theft is a Felony.

I asked the Gibson County Sheriffs office about detaining a trespasser against their will until the police arrived and I was told "not a good idea".

There's a difference between what is a good idea, and what is legal. Something legal may not always be a good idea - and something that is a good idea may not always be legal. It's important to keep distinction between the two.

To answer your question on what I would do .... I would grab the cell phone and the shotgun as I was walking out the door. Call 911 and try to figure out what the heck was going on. If the would be thief ran I would try and get him/her to stop with verbal warnings of a colorful nature but in the end I aint shooting them and I sure as hell aint running after them. If they decide to stay till the police got there I would let them handle it from there.

Essentially what I'm saying - except with a hand gun instead of a shotgun. I don't have a shotgun (but I should, soon... Indy 1500 tomorrow for me).

Aren't we debating this in another thread?

Perhaps, I didn't search every different possibility of discussion before posting this thread. I researched my specific questions about the laws and came back with a lot of non-useful or non-relevant information.

I would argue not to draw unless you are justified to shoot. Then don't shoot unless you have too. Finally, don't stop shooting unless the threat is stopped.

That's the general consensus, but nothing in the law says that you have to do this. As near as I understand it - you can draw without firing when you have probable cause that a perpetrator is committing a felony to either halt that felony/action and/or detain them.

Don't shoot to kill - shoot to stop the threat as quickly as possible! The side effect of this is the high probability of death. Yes, there is a difference. If you shoot, the attacker continues, mortally wounds you or another with a knife and then dies, you've done it, you've killed him, but you didn't stop him.

I see your point - if I shoot to kill, and I do kill - they have effectively been stopped. If I shoot to stop them - and they stop (without being killed) I would have still accomplished the goal.

The other thing I have to add to this thread - Never get in the middle of a domestic dispute!

Absolutely not. A third party domestic dispute and I'll let the police handle it. If it's me and my wife - we'll handle it the way we always have - walking away and cooling down and then discussing it calmly later.

We carry guns to protect our lives and the lives of others. Not to protect stuff and definitely not to protect our egos nor do we enforce the law. For me, nothing I own is worth spilling blood over.

And I'm talking about *not* spilling blood, people seem to be so hard-up that you can only pull when you intend to shoot - which is probably good logic but isn't what the law says (unless you can show me otherwise).

 

[swilk]

Technically it looks like you are correct.

Might be a bit of a grey area there on the "all thefts are felonies" thing though .... the charge of Criminal Conversion could come into play.

IC 35-43-4-3

If the charge is criminal conversion instead of theft it is a misdemeanor instead of a felony.

 

[MikeDVB]

Conversion is simply exerting control over it, where as theft is to deprive them of it. TBH they're similar enough to cause confusion. From the cases I've watched it's always theft and can be plead down to Class A Misdemeanor Conversion (which is what happened with my ex-wife).

I don't know of anybody charged simply with Conversion right off the bat, but that isn't to say it couldn't happen. Based upon the law, I would say that I would have probable cause to believe they were taking to deprive me of it which would be theft (a felony).

 

[swilk]

Now we are getting into "technicalities" and basically hoping the prosecutor sees it the same way you did.

No thank you.

 

[Dead Duck]

I will confront anyone on my property doing anything at anytime. Shouldn't matter if they are armed or not. People should not be allowed to do what they please without consequences. If they run, I will chase them to gather as much info about them as possible. (destination, plate number) This also goes for my friends and neighbors property's.

Some people will cower in their homes at the window with a phone to their ear. These people will soon lose all they own. I will fight for what is mine and will not be intimidated or bullied. I know right from wrong and wouldn't draw without my life being threatened.

Is this putting myself into a shooting situation on purpose? No.

What if I lived in a place that was gun free, where only the bad guys were allowed to carry. (California) Being unarmed, I'm still confronting thieves because I'm right and they are wrong and I will do everything in my power to intervene.

This should be simple. If the court thinks I'm in the wrong then they need to be proving it. You can play chess and try to think ahead all you want to look good "Legally", but if the bad win - we all lose.

Tip-Toeing is for P*****s!!

 

[MikeDVB]

Now we are getting into "technicalities" and basically hoping the prosecutor sees it the same way you did.

No thank you.

It isn't about the prosecutor as much the judge and/or jury. I'm wanting technicalities as I am wanting to discuss this in technical detail.

Just because I find something interesting and want to discuss and/or debate it doesn't make it a good idea or mean that it's something I will do.

 

[swilk]

It isn't about the prosecutor as much the judge and/or jury. I'm wanting technicalities as I am wanting to discuss this in technical detail.

Just because I find something interesting and want to discuss and/or debate it doesn't make it a good idea or mean that it's something I will do.

Prosecutor decides if the judge/jury is necessary in the first place.

 

[IMPD31323]

And I'm talking about *not* spilling blood, people seem to be so hard-up that you can only pull when you intend to shoot - which is probably good logic but isn't what the law says (unless you can show me otherwise).[/QUOTE]


In my opinion the law is clear about warning shots. look up criminal recklessness with a deadly weapon. As far as pointing it, ie"pulling it" look up the I.C. for pointing a firearm. I believe that will answer your question.

 

[MikeDVB]

And I'm talking about *not* spilling blood, people seem to be so hard-up that you can only pull when you intend to shoot - which is probably good logic but isn't what the law says (unless you can show me otherwise).

In my opinion the law is clear about warning shots. look up criminal recklessness with a deadly weapon. As far as pointing it, ie"pulling it" look up the I.C. for pointing a firearm. I believe that will answer your question.[/QUOTE]So I presume that pointing a firearm would not be considered "reasonable force"?

 

[POC]

I think the answer is obvious....
...you have to approach the person attempting entry to your garage until they do something to you that allows you to use deadly force.

 

[MikeDVB]

I think the answer is obvious....
...you have to approach the person attempting entry to your garage until they do something to you that allows you to use deadly force.

We seem to be beating a dead horse - nobody is answering the three pertinent questions. I'll simplify them:

1. Is pulling+pointing "deadly force" or is it only "deadly force" when you pull the trigger?
2. Is pulling+pointing "reasonable force" if the person you point at is committing a felony?
3. What is "reasonable force"?

Anybody responding does not have to respond to all 3, but I would like to avoid any more repetitions of "do not pull unless you are going to shoot." That's already been said numerous times - and does nothing to address the definition of "reasonable force."

 

[mainjet]

Reasonable force is something that can change with each and every case. I believe that would be the reason that law makers summed it up by saying "reasonable" force. First you have to know the facts of the exact situation and then it needs to be decided if your reaction to those facts were indeed reasonable.

When it comes down to it it's going to be were you protecting your life or the lives of others.

You are probably not going to get a straight bottom line answer here because it is a very difficult thing to bottom line. It all depends on what is happening and how you react. You need to read IC and educate yourself as to what the law says not what people on the internet say. In court you will have to say your defense is "X" based on IC and the law, NOT "X" based on what mainjet said on INGO.

I again would not try to bring it down to "Is pulling+pointing "reasonable force" if the person you point at is committing a felony?" I would be more concerned with is my life or the lives of others being threatened. At that point you know you are justified in pulling and pointing. If your concerned just about it being a felony then you are just getting too close to trying to play cop IMHO.

Me personally, I am not drawing or pointing to protect property outside of the home. If someone enters my home or my occupied motor vehicle then I am drawing and will fire if necessary to protect my family. I will go outside to investigate my property and I will be armed but I will not draw unless I am threatened.

Keep it simple - only use the gun to save your life and the lives of others. Let the rest be taken care of in court.

 

[finity]

We seem to be beating a dead horse - nobody is answering the three pertinent questions. I'll simplify them:

1. Is pulling+pointing "deadly force" or is it only "deadly force" when you pull the trigger?

It COULD be deadly force. See No.

In that case the court of appeals determined that pointing a firearm in defense of his property went beyond "reasonable force" & therefore constituted deadly force (which under the circumstances wasn't reasonable) so he was convicted of pointing a firearm.

That's not to say that pointing a firearm is ALWAYS deadly force just that it LIKELY is.

2. Is pulling+pointing "reasonable force" if the person you point at is committing a felony?

The "pointing a firearm" law allows exceptions. One of those exceptions is performing a citizens arrest. The other is when "reasonable force" is justified under the self-defense laws. One of those exceptions has already been shown to be put under question. I wouldn't be surprised if the other is as well given the reasoning in Nantz above.

IOW, unless you are justified in using "deadly force" IAW the IC then I wouldn't be pointing a gun at someone for stealing property even if you are performing a lawful citizens arrest.

3. What is "reasonable force"?

This may sound like a cop-out answer but it is any force that is reasonable.

The "reasonable man" standard is what applies in this case. That doctrine states that what is "reasonable" is that which a person of normal sensibilities would think was reasonable given the information that should have been appropriately known to the person at the time of the incident & NO MORE.

For example, you can't use the fact that the person was an escaped convicted murderer & was armed with a concealed weapon & that they were a 5th degree blackbelt as a justification for your actions if you only found out that information AFTER the fact.

However, if you DID know those things beforehand then those things would (should?) be taken into consideration to determine if your actions were deemed "reasonable".

But you can't be held responsible to know that there were other hidden circumstances that would have made your use of force unreasonable. You can't be reasonably expected to know that the BG had no ACTUAL intention of killing you with his knife after he threatened you with it.

That is what others have been trying to tell you above. There can be NO legal definition of "reasonable force" since the parameters for determining what is "reasonable" depends ENTIRELY on the DETAILS of the PARTICULAR case.

But to kind of answer your question...

"Reasonable force" could be grabbing the guy or punching them or tackling them or any other kind of PHYSICAL FORCE used against them. It could also be shooting or stabbing them if the situation warranted it.

I would say that most people would find it reasonable to try to physically stop someone who is stealing your things even if it was just to grab them & say "stop it". The AMOUNT or EXTENT of physical force that you use (a continuum all the way up to & including deadly force) is where the details of the situation come into play.

It wouldn't likely be found reasonable to tackle & beat up a normal 10 year old kid for stealing aluminum cans from your driveway.

I hope you see what I'm trying to get at here.

Anybody responding does not have to respond to all 3, but I would like to avoid any more repetitions of "do not pull unless you are going to shoot." That's already been said numerous times - and does nothing to address the definition of "reasonable force."

I think that the "don't pull unless you are going to shoot" idea is a little overstated BUT I kind of agree with the GIST of what they are saying.

I personally see no issue with confronting someone who is stealing your stuff (at night, from your garage - not just someone running by & swiping your laptop from a park bench - those details again...) with your gun drawn but NOT pointing it at them.

HOWEVER, if you're going to be pulling or pointing a gun on/at someone you had better be prepared to use it.

IF OTOH, the situation changes to the point where your use of the gun is no longer justified then you better be prepared to stand down, too.

I doubt you would be charged with pointing a firearm because you pointed & you didn't shoot them AS LONG AS your pointing of the firearm was JUSTIFIED at the moment that you pointed it at them in the first place.

 

[Hookeye]

If I catch somebody breaking in, then I'm already too close to not have my gun out.
I'll yell at them and they can run away, or if they come at me, or start to pull a weapon at least I'm ready.

Now if I'm in my house looking out, I'll yell at them and call the cops.

But in the OP I figured it was more like walking out and suddenly coming upon them.

Not my damn fault they chose a possibly deadly profession. I'll give 'em an out and they better take it. My stuff, my property..........screw 'em if they don't leave or escalate the situation.

 

[MikeDVB]

Main, Finity, and Hookeye - thank you very much for your responses. That does definitely help clear things up for me in my mind.

 

[Dirtebiker]

Thank you to all who have posted in this.

I have wondered about this exact situation and what I would do.

About a year ago my sister was home alone and saw someone pull into our driveway and enter our detatched garage. She didnt do anything and stayed in the house. They didnt take anything, just looked around and left.

I have ran the situation through my head a thousand times on what I would have done if I had been home. I definitely would have confronted them and definitely would have had my XD9 on me. I never could come to a conclusion if I would have drawn on them, locked them inside until the police came, or just let them run out. Had I been there, I think I probably would have held them at gunpoint and zip-tied his hands until the police arrived.

Thank you all for clearing things up. I guess now Im glad I wasnt there, seeing as how I probably would have gone to jail if I had done what I think I might have.

I know I'm late to this conversation, but wanted to chime in here!

No matter what, if and when you are ever in a situation where you are holding someone at gunpoint, never, ever, get close enough to them that they have a chance to disarm or harm you!

Trying to "zip-tie) his hands??? NO NO NO!!!!!

Too many bad things can happen in that case! Hold them at gunpoint if necessary, let the police (or possibly back up, if anyone else is around, but I still don't like that, unless said person is trained and/or capable!) take care of restraining the b.g.!

 

[Dirtebiker]

I've actually been in one of the situations you've given as an example. It was a Saturday night (technically Sunday morning) at 2 am. I'm a night owl so I was up anyway. All of a sudden I hear someone trying to come in my front door. Now, it doesn't sound like they're trying to force it open, more like trying to jiggle the handle and maybe using a key that won't work in my lock. Why trying to unlock MY door with THEIR key is beyond me, or it was at the moment, things became a little clearer later on, but I'll get to that.

So, grab my handgun and go to the door and in a particularly nasty tone of voice ask who's at my door. A male voice on the other side says "It's me." To which I, in a not so calm manner, inquire "me who?" Admittedly with some colorful words between the 'me' and the 'who'. To which I get no response. The handle jiggling has also stopped. Soon after, I hear similar noises at my back door.

I have a sliding glass door upstairs that opens to a deck that overlooks my back door. There is a gate at the top of the stairs leading up to the deck, which few people seem to be able to figure out how to work. I look out my sliding door and see nobody. Figuring I'm in a somewhat secure elevated position, I crack open the sliding door and peek my head out to where I can get a better view of the back door. There I see a guy in his mid twenties or so trying to gain entrance. Again, not really trying to force his way in. I again inquire as to what in the hell this guy thinks he's doing. (Mind you, the whole time the wife was on the phone with 911.) He tries to answer me and it becomes incredibly obvious that this guy is as drunk as a monkey.

A week or so earlier a couple of mid twenty something guys moved into the place next door. We hadn't really met yet, but he kinda looked like one of the guys who moved in over there...maybe.

Drunk guy starts going on about how he lives here and he wants to know what I'm doing in his house. So, I tell him he's at the wrong house and he needs to get outta here and go home, right next door. He gets very argumentative and refuses to leave. He walks from my back door to the stairs leading up to my deck. Being loud and mean, he starts to walk up the stairs. I've still got the sliding door open about a foot. As he starts up the stairs, I take aim. He sees the gun and backs down the stairs telling me not to shoot. I told him to stand right there and not to move, but he's drunk and apparently not that bright. He walks away, around the house, and back to my front door.

The whole process starts over again. He can't get in the front door, so he walks around to the back again. He can't get in the back door, so he walks around to the front door again. He went from front to back and from back to front about half a dozen times.

FINALLY, Chesterton's finest arrive and I mean they arrive in force -- 3 cars in front of the house, 4 cars in the alley behind the house, a couple cars on each side street on either side of our block, red and blue lights and spot lights lighting up the neighborhood.

To make a long story somewhat shorter, they put him on the ground (which was fun to watch ) and cuff him. They determine that he's drunk (no, really? ) and that he does in fact live next door.

They ask if I want to press charges, which I didn't. He was just a drunk sob at the wrong house. I did inform the officers that he's lucky he didn't manage to force his way in because I was armed and was ready to defend myself and my family if needed. "I don't blame you." was the exact response from the officer I was talking to. Gotta love that.

So, drawing and pointing my weapon did somewhat prevent him from trying to get in without having to fire. It was my full intent to shoot if he continued to come at me, but thank God I didn't have to. I wasn't given a lecture. I wasn't brought up on or even threatened with brandishing charges. They let him go home and let me get back to playing video games.

I don't think I'd ever point my gun at someone as a means of defense without the full intent to shoot though. It just happened that the mere presentation of the gun stopped him in his tracks, before he started making tracks again towards my front door.

A couple of months later he was locked inside his house holding off the Chesterton SWAT Team, or whatever they call themselves, with a shotgun. Several hours later it was resolved peacefully and he surrendered. Never seen him again.

Wow, how drunk does one have to be to look down the barrel of a gun, and not sober up enough to know its time to leave, but instead, keep trying to get in?!

Maybe JetGirl can fill us in on the amount of alcohol a Monkee can handle!

 

[Dirtebiker]

You are free to do as you wish but I for one would never fire a warning shot under any circumstances. If it comes to the point that I need to fire then it will be directly at my intended target. Because the very fact that I am firing says that I am in fear for my life or the lives of my family.

I see no scenario where a warning shot could or should be used. There is no wisdom in a warning shot and the defense of it will be difficult.

The "warning shot" worked for me and a buddy, when we pulled our motorcycles into the wrong driveway, looking for a party, back in the early 80's!
The guy shot over our heads, and believe me, it was more than enough to make us hit the throttle as hard as we could, and get the hell out of there as fast as possible!
Not saying he should have shot his weapon, just that it did what he wanted it to, and he got the response he wanted!

 

[mainjet]

The "warning shot" worked for me and a buddy, when we pulled our motorcycles into the wrong driveway, looking for a party, back in the early 80's!
The guy shot over our heads, and believe me, it was more than enough to make us hit the throttle as hard as we could, and get the hell out of there as fast as possible!
Not saying he should have shot his weapon, just that it did what he wanted it to, and he got the response he wanted!

Yea, try that today and see where the shooter will end up.