What does the law say?

[PatriotPride]

I agree with seeker here---if you want clarity and absolutes, steer clear of law (IANAL but I do happen to work for a large legal firm) As I understand it, physics at least has SOME determinable absolutes. Maybe.

 

[Libertarian01]

To All,

Good discussion and good question.

This is why I love pepper spray! It allows you to neutralize most folks without putting them at risk of loosing their life.

To be clear I am talking about pepper spray, NOT mace or some other chemical!

Pepper spray is 100% natural and cannot cause permanent damage, unlike mace or other chemicals. So if Doofus wants to claim you blinded him, he has no case.

Later in front of a jury you can say, "I tried everything! I couldn't escape, I couldn't talk him down, I tried pepper spray and WHEN HE KEPT COMING I shot him to protect myself!" (This presumes you have the ability to try all of these...)

And do NOT forget, "Officer, I know you are a good person and doing an excellent job in the community but I WILL NOT DISCUSS THESE EVENTS WITHOUT THE PRESENCE OF MY ATTORNEY! Please have a nice day."

Regards,

Doug

 

[Denny347]

Here is an example of someone pulling out their pistol in a bar and getting arrested.
IU student arrested for pointing loaded gun in bar - 13 WTHR - Indianapolis News |

 

[Bubba]

Here is an example of someone pulling out their pistol in a bar and getting arrested.
IU student arrested for pointing loaded gun in bar - 13 WTHR - Indianapolis News |

A slightly different situation than I took the OP as, but a good and timely example. If this article is telling a complete and accurate story, Mr. Brill just landed himself a Class D felony, and rightly so.

(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.

 

[cosermann]

I think we'd all agree this is a type of situation in which none of us want to find ourselves. It's not cut and dried and may in all liklihood depend on how good a job your attorney does convincing a jury. Given that, here's a line of reasoning by Massad Ayoob that may be helpful. It's been posted here on INGO before so here's the link to that post:

https://www.indianagunowners.com/forums/355951-post43.html

If he knows you have a gun, proceeds anyway, and you get decked, guess who now probably has control of your firearm? Not pretty, but that's the alternative. If you did what you could to avoid the situation and didn't instigate anything, hopefully a jury would see the simplicity of that.

 

[U.S. Patriot]

I look it it this way. While in the service we had levels of force. Different from ROE's because we did law enforcement. If someone makes verbal threats, and you have the ability to walk away. It's best you walk away, not beat the crap out of them, or draw down. Now lets say you have verbal threats, with a weapon. IE: the guy is holding a knife in his hand, and is saying I'm going to f you up. It's situational on where you are, and the distance between you and the perp. I would try to keep from brandishing my weapon, however if I feel like my life is at risk. Then I'm going to brandish my weapon. Lastly obviously if you are receiving verbal threats, and you see the perp has a gun then I am drawing down. How I react next is all dependent on how they react. I know that's basic, and ever situation is different. However, not every action needs to be reacted to with brandishing a weapon. Or the use of deadly force!

 

[rhart]

His last words were " Even if you run, I will chase you down and kill your ***"

 

[Boomer372]

Once again,swallow the pride and knock'em down with heel dust. No avanue of retreat? Genuinely in fear of your life? Center mass untill the threat is nuetrealized.

 

[finity]

I'm just wondering where is the line? Do you only pull your weapon out if you know you are not capable of beating the other guy up?

It all depends on the term “reasonable”.

De-escalation is fine, but you can't use your gun as a bargaining chip - you can only pull it if you think you or a third party are in danger of death or serious bodily injury.

Actually the law says you can use your gun as a “bargaining chip”. In the IC you quoted (IC 35-47-4-3) it says “this section does not apply to…a person who is justified in using reasonable force against another person”. Note that the law DOESN’T say “deadly force”, just “force”.

OTOH, if you don’t NEED to draw then don’t. I agree it’s better to wait until you have to use it to pull it.

So you can't point your gun at him? So if he's bigger than you and no matter what wants to knock you out, you pull your gun out at him. You decide not to shoot, but only want to threaten him to back down. I'll go to prison 'cause I didn't shoot him? But because I pointed my gun at him?

No. See above.

That was the recent ridiculous ruling by a Kansas (I think) court that since the person didn’t use their gun then self-defense was not a valid defense to prosecution.

I think that is the reason for the IN law, so we don’t get into a situation like above. If it was illegal to point a gun at someone (period) but it is legal to shoot in self-defense then what happens if you draw & they run before you shoot? In IN since the self-defense law is a defense against prosecution for pointing a firearm, then no problem.

If you pull it because someone is coming at you with a knife or bat, or is kicking you in the head while you're on the ground, you're fine.

Common sense.

See, you don’t need to get to the point of someone kicking you in the head while you’re on the ground. By then it would be too late for most people. The law doesn’t say you have to have already had injury inflicted on you before you act in self-defense just that the use of force is imminent (on the verge of happening – not has happened). As another example, you don’t need to already be shot in order to use your gun to defend yourself from being shot.

If you were truly firing because you thought that is what you had to do to preserve life, then all of the scrutiny will be worth it.

You don’t JUST get to use deadly force to preserve life. If you are being raped – deadly force is justified. If you are being robbed or kidnapped or getting your legs broken by a crazed woman with a baseball bat – deadly force is justified.

Here is an example of someone pulling out their pistol in a bar and getting arrested.

IU student arrested for pointing loaded gun in bar - 13 WTHR - Indianapolis News |

Could you be arrested? Sure. Just because you’re arrested doesn’t mean you’ll be convicted. If you base your self-defense decisions solely on the possibility of being arrested then there’s no point in carrying. If you don’t act for fear of being arrested & end up dying because of it, how does that help? Read the laws then follow them to the best of your ability. That’s the only thing you have any control over.

Another thing: the way I understand it is, if you claim self-defense, the prosecution has to prove beyond a reasonable doubt that it was unreasonable for you to have used deadly force. They have to show that it was not reasonable for you to believe that you needed to use deadly force. That is much harder to do than just proving you actually did some action. It’s really hard to disprove someone’s belief in something. It’s possible (as some obvious examples have been given here) but not necessarily easy.

 

[Ashkelon]

The law is remedial in nature not preventative. You will never be able to say if "x" happens then "y". When statutory application depends on terms such as reasonable then that opens the door for a wide variety of interpretation.

The responding LEO may make a particular judgment call or may punt it to a prosecutor who may then simply file based on PC and punt it to a Judge or jury for the ultimate determination. Every situation is different and in every locale there are different decision makers.

Best advice I can give is if you pull your gun expect to use it. If you don't use it expect to get arrested if you do use it expect to get arrested.
You will then be waiting on the remedial nature of the system and cooler heads to prevail with reason as to whether you will be charged or convicted.

 

[Bubba]

Actually the law says you can use your gun as a “bargaining chip”. In the IC you quoted (IC 35-47-4-3) it says “this section does not apply to…a person who is justified in using reasonable force against another person”. Note that the law DOESN’T say “deadly force”, just “force”.

This is where "reasonable" rears it's ugly head again. IC 35-47-4-3 allows the pointing of a handgun if allowed by IC 35-41-3-2 (or 3-3 but we aren't talking about arrest or escape of a felon). 35-41-3-2 allows reasonable force to be used to prevent the imminent use of unlawful force, but deadly force is only authorized if the defender or a third person is in danger of death or serious bodily injury. The mere pointing of a handgun should not be considered deadly force, but it would be unreasonable (to me) to draw and point a handgun in a situation where there is no indication that gunplay may be needed. For example, if you discover a 12-year-old boy is beating up a classmate in an alley, IC 35-42-3-2 allows you to use reasonable force to protect the victim from the bully's imminent use of unlawful force. You might argue that IC 35-47-4-3 allows pointing a handgun in this situation because you can use reasonable force, however full grown adult vs. one angsty 'tween is not a situation most would consider reasonable for the application of deadly force.The distinction for the average armed citizen is much finer than it would be for the average LEO. I imagine the percentage of civilians who carry intermediate force weapons (chemical, electric, impact) is fairly small, whereas the average LEO has a number of toys on his/her batbelt, giving several options between verbal command and firearms. Here's a recent US 7th Circuit case where an Indiana LEO was authorized to use some level of force to carry out the terms of a search warrant, but in doing so pointed a firearm at people who gave no indication of being a deadly threat.

The court also noted that, often, it is objectively reasonable for officers to point guns at subjects that they detain. The court stated: "while police are not entitled to point their guns at citizens when there is no hint of danger, they are allowed to do so when there is reason to fear danger.”

Analysis: Pointing a Gun, Excessive Force and the Fourth Amendment
Court opinion (PDF): http://www.google.com/url?sa=t&sour...qTwaIN&usg=AFQjCNFBD0YynWq2fh9ixhXCyW-q0qIY6g

 

[SSGSAD]

What if you got into a situation where its you and another guy. The other guy means to do you harm, maybe just wants to beat the living crap out of you. He has no weapon though. What does the law say? Can you pull out your gun and still be legal? Or do you HAVE to take the beating?

And what if there were no other witnesses. Its your word against his. What happens then?

You have to be "in fear of GREAR bodily harm, or in fear of your life... the problem, is CONVINCING someone else that is true...

 

[shibumiseeker]

You have to be "in fear of GREAR bodily harm, or in fear of your life... the problem, is CONVINCING someone else that is true...

And this is where how you live your life before a shooting makes a difference. If you have a history of aggressive or reckless behaviors, this will come to light in trial and the prosecution side will use it to paint the picture to the jury of you. If you got into lots of fights as a juvenile, if you've ever had the police called on you for a domestic situation, and so on and so on. It doesn't even need to be stuff that got the law's attention, if they can find a coworker who says you routinely fly off the handle at meetings, they can use that. A judge may or may not allow a jury to hear some of your history depending on whether the prosecution can press the relevance, but it *can* come out. And while it may not come out in a criminal trial, it certainly can come out in a civil trial.

The converse is true as well. If you can have multiple character witnesses who say you're the salt of the earth who goes out of his way to help people and who tries hard to avoid violence and conflict and you have no record of any type of violent or aggressive behavior, this helps your case too.


I'd like to add that once it gets to the point of a trial you've already lost since you've probably spent at least a few days in jail and your legal bills are in the $10-20k range so far. Those of us who stress this repeatedly are not trying to tell people that using a weapon in self defense is pointless, it is to try to beat into folks' heads that it is a very serious situation with grave consequences, even if you "win." We have to keep beating that drum because popular media has taught people that the conequences aren't that bad, if you win.

 

[kludge]

You have to be "in fear of GREAT bodily harm, or in fear of your life... the problem, is CONVINCING someone else that is true...

I disagree about the "great" part.

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.

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

IC 35-41-1-25
"Serious bodily injury" defined
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.

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.

IC 35-41-1-4
"Bodily injury" defined
Sec. 4. "Bodily injury" means any impairment of physical condition, including physical pain.

That said you may have an easier time of things if you are older, weaker, more impaired (the physically limiting kind not the drug induced kind) , or more female than your attacker.

However this goes back to my first post in this thread... How are you supposed to know the criminal intentions of the person attacking you? How are you supposed to know if he is high on PCP and can't feel any pain? How are you supposed to know who is the stronger fist fighter? How far will he go to get what he wants? Does he want you beat up or dead?

The law protects us from all kinds.

The guy in the Bloomington bar example is probably in deep doodoo because he (allegedly) started the confrontation.

If he communicated his intentions to give up the fight/withdraw from combat and later felt threated, he had every right to defend himself with his gun.

 

[Z-Glock23]

All in all, there are over 100,000,000 possible situations. You have to use your gut instincts. Just remember the saying," It's better to be judged by 12 than carried by 6". Don't let the fear of law prevent you from saving a life.

 

[abomb86]

The issue is do you wound them and get sued later...

 

[ATM]

The issue is do you wound them and get sued later...

Well, you stop the threat.

If a wound stopped the threat, any shots further wounding beyond that would be an attempted execution or murder.

If they later (or even immediately) died from the wound(s) required to stop the threat, that would still be self defense.

 

[Timjoebillybob]

IC 35-41-3-2: [...]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.

I'm not so sure that applies to civil jeopardy. I think just criminal. ie If you didn't have an ltch and had a justified shoot they couldn't charge with carrying without the license. See the difference in the wording between that section of code and the one that protects you from civil actions if someone steals your gun and uses it in a crime.

IC 34-30-20-1
Owner immunity for misuse of a firearm by a person who acquires the firearm by criminal act
Sec. 1. A person is immune from civil liability based on an act or omission related to the use of a firearm or ammunition for a firearm by another person if the other person directly or indirectly obtained the firearm or ammunition for a firearm through the commission of the following:
(1) Burglary (IC 35-43-2-1).
(2) Robbery (IC 35-42-5-1).
(3) Theft (IC 35-43-4-2).
(4) Receiving stolen property (IC 35-43-4-2).
(5) Criminal conversion (IC 35-43-4-3).

 

[kludge]

So what is your definition of "legal jeopary of any kind whatsoever"? Does it not include "civil liability"?

 

[Timjoebillybob]

So what is your definition of "legal jeopary of any kind whatsoever"? Does it not include "civil liability"?

Mine probably would, but I'm not a lawyer or a judge. The one thing is where both of them are located, the self defense legal jeopardy is under the criminal statutes. The civil liability is under the civil statues. And I can't find any civil immunity for self defense under that title.