Are You Going to Jail? (The next installment)

[GuyRelford]

I know that some of you enjoy the legal scenarios, so here's the next one:

You and your wife are relaxing in bed, watching the late news and getting ready to go to sleep. Your trusty Labrador begins barking outside, so you look out of the window. You see that the light is on in your storage shed, which is behind your garage, on the back edge of your yard - just inside the fence. You specifically remember turning that light off the last time you were in the shed, so you suspect foul play.

You grab your Benelli M1 Super-90 12-guage from underneath the bed, and walk out to the shed to investigate what is going on.

Just as you get to the shed, the door opens and two men rush out. You can see that one man is carrying your new Honda generator and the other is empty-handed. You shoot twice, killing the first one and wounding the other.

You hold the wounded man at gun-point while your wife calls the police.

Are you going to jail?

Guy

 

[PaulJF]

Nope

 

[Bill B]

Probably. IMO the curtilege does not extend to a storage shed that is far away from the house. However, if you can show that the entire yard is part of your living area (being fenced in helps, depending on type of fence) then you have a good chance of raising enough reasonable doubt to beat the rap.
If I was on the jury, you can bet their wouldn't be a conviction.

 

[furbymac]

yes, if everything is as you say, you saw no proof that your life was in danger.

 

[lovemachine]

Can someone quote the IC that states you have the right to protect your property?

 

[furbymac]

Can someone quote the IC that states you have the right to protect your property?

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).
(d) A person is justified in using reasonable force, including deadly force, against another person and does not have a duty to retreat if the person reasonably believes that the force is necessary to prevent or stop the other person from hijacking, attempting to hijack, or otherwise seizing or attempting to seize unlawful control of an aircraft in flight. For purposes of this subsection, an aircraft is considered to be in flight while the aircraft is:
(1) on the ground in Indiana:
(A) after the doors of the aircraft are closed for takeoff; and (B) until the aircraft takes off;
(2) in the airspace above Indiana; or
(3) on the ground in Indiana:
(A) after the aircraft lands; and
(B) before the doors of the aircraft are opened after landing.
(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.
(f) Notwithstanding subsection (d), a person is not justified in using force if the person:
(1) is committing, or is escaping after the commission of, a crime;
(2) provokes unlawful action by another person, with intent to cause bodily injury to the other person; or
(3) continues to combat another person after the other person withdraws from the encounter and communicates the other person's intent to stop hijacking, attempting to hijack, or otherwise seizing or attempting to seize unlawful control of an aircraft in flight.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.8; Acts 1979, P.L.297, SEC.1; P.L.59-2002, SEC.1; P.L.189-2006, SEC.1.

 

[Brandon]

yes. life was not in danger, no need to shoot.

 

[Bunnykid68]

Going downtown but not to jail. Those guy could be MMA badasses....they must be if they thought they could steal my stuff

 

[Silverado]

I'd say the homeowner is going to jail. If the criminals were fleeing, it may be hard to prove that deadly force was reasonably necessary to prevent or terminate their unlawful entry or attack.

 

[GuyRelford]

Can someone quote the IC that states you have the right to protect your property?

If you mean personal property, here you go:

"(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)."

Subsection (a) reads:

"(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 mean your home:

"(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."

Ind. Code 35-41-3-2.

 

[mrjarrell]

Doubt you're going to be prosecuted in most circumstances, (hard to say, tho. It might be an election year for the prosecutor).

 

[lovemachine]

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."

Wouldn't that mean you were within the law, so you're not going to jail?

The shed is still on your property...

 

[lovemachine]

Then there's this..

(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.

 

[mrjarrell]

is justified in using reasonable force against another person

Reasonable force is the key phrase there and it's open to the interpretation of the arresting officers and the prosecutor. Was blasting them "reasonable"? In certain locales a jury is going to send you up the creek, if the prosecutor decides he can make another notch in his belt.

 

[Amattern]

How close to the shed are you when they came out? When coming out were they heading toward you or away?Were they found with any weapons? Was the motor the only thing in their hands at the time?

 

[GuyRelford]

How close to the shed are you when they came out?

21 feet

When coming out were they heading toward you or away?

Toward you.

Were they found with any weapons?

Nope

Was the motor the only thing in their hands at the time?

Yep.

 

[jon5212]

I think the shooting part would get you in trouble if they don't have any weapons. But if you were to just hold them at gunpoint I don't think you'd have any problem.

 

[TiminMishawaka]

Probably not but that doesn't mean I'm not calling my attorney and doing what he says....which may include saying nothing and waiting to go downtown until he gets there.

I've heard that Californians who carry legally still keep an attorney on retainer in the event they have to use their gun because it's a guarantee they're at least going downtown even if they shoot the resurrected Bin Laden himself. Doesn't sound like a terrible idea if you have the means.

 

[7.62]

Yes. You were not threatened.

Correct solution: Kick the empty handed man in the balls as hard as you can. If the other guy sticks around, choke him out cold with a RNC. If he tries to run WITH your generator, simply catch up to him and apply RNC. If he runs away empty handed, let him go. Give the man on the ground grabbing his balls the option of getting up for round 2 or leaving with no further bodily harm.

Haha....bad idea.....i hope you are gsp if you are going to risk your life taking on two unknown skill lvl men at once. The bg could be someone very skilled. Rear naked chokes are not as easy as they look on ufc if its against a guy who may be trained as well. I have be involved in mma since i was 8....take it from me that's a really dumb idea.

And to answer the question...under the IC no you should not be going to jail. You have right to defend that property without duty of retreat....including deadly force

 

[Dirtebiker]

I'm not sure!
I'd say you should be o.k., definitely going downtown for questioning, but hopefully not to jail.
I guess it depends on how much " fear" you felt?!