call for review of indiana self defense codes

[Jerchap2]

I REALLY appreciate that we have attorneys on here to help with these legal questions. Well, at least most of the time....

 

[stephen87]

Is there anything in IC that says you must apply reasonable force? And does it differ from let's say you're walking on the street, or on your property, or in your home/dwelling?

Yes, it is spelled out in IC that you may use reasonable force.

IC 35-41-3-2
Use of force to protect person or property
Sec. 2.
(a) In enacting this section, the general assembly finds and declares that it is the policy of this state to recognize the unique character of a citizen's home and to ensure that a citizen feels secure in his or her own home against unlawful intrusion by another individual or a public servant. By reaffirming the long standing right of a citizen to protect his or her home against unlawful intrusion, however, the general assembly does not intend to diminish in any way the other robust self defense rights that citizens of this state have always enjoyed. Accordingly, the general assembly also finds and declares that it is the policy of this state that people have a right to defend themselves and third parties from physical harm and crime. The purpose of this section is to provide the citizens of this state with a lawful means of carrying out this policy.
(b) As used in this section, "public servant" means a person described in IC 35-31.5-2-129 or IC 35-31.5-2-185.
(c) A person is justified in using reasonable force against any other 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.
(d) A person:
(1) is justified in using reasonable force, including deadly force, against any other 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.
(e) With respect to property other than a dwelling, curtilage, or an occupied motor vehicle, a person is justified in using reasonable force against any other 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 (c).
(f) A person is justified in using reasonable force, including deadly force, against any other 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.
(g) Notwithstanding subsections (c) through (e), 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.
(h) Notwithstanding subsection (f), 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.
(i) A person is justified in using reasonable force against a public servant if the person reasonably believes the force is necessary to:
(1) protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force;
(2) prevent or terminate the public servant's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle; or
(3) prevent or terminate the public servant's unlawful 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.
(j) Notwithstanding subsection (i), a person is not justified in using force against a public servant if:
(1) the person is committing or is escaping after the commission of a crime;
(2) the person provokes action by the public servant with intent to cause bodily injury to the public servant;
(3) the person has entered into combat with the public servant or is the initial aggressor, unless the person withdraws from the encounter and communicates to the public servant the intent to do so and the public servant nevertheless continues or threatens to continue unlawful action; or
(4) the person reasonably believes the public servant is:
(A) acting lawfully; or
(B) engaged in the lawful execution of the public servant's official duties.
(k) A person is not justified in using deadly force against a public servant whom the person knows or reasonably should know is a public servant unless:
(1) the person reasonably believes that the public servant is:
(A) acting unlawfully; or
(B) not engaged in the execution of the public servant's official duties; and
(2) the force is reasonably necessary to prevent serious bodily injury to the person or a third person

 

[Doug]

So if they succeed in eliminating stand your ground laws, does that mean we can starting getting in the face of ne'er do wells and they have to run or risk going to jail?
Not saying we should take that action, but lawmakers never think their ideas through.

No. That will not work when the mob rules.

If you "get in their face" or even follow them, the mob sees that as justification for the ne'er do well to attack you with deadly force.
Once attacked, you have the right to scream, bleed, and die. If you defend yourself, you will be demonized, persecuted, and prosecuted. The government will spend millions to try to find some way to put you in jail. Your choices will be total economic ruin; plead guilty, go to jail, and be murdered there; or suicide.


I wish I could, in good conscience, put that in purple.

 

[daddymikey1975]

Kirk, where can we find the text of Runyan v. State of IN ?

I've been digging for it and can't find the case. I would love to read it if it's available somewhere.

 

[IN71vet]

No. That will not work when the mob rules.

If you "get in their face" or even follow them, the mob sees that as justification for the ne'er do well to attack you with deadly force.
Once attacked, you have the right to scream, bleed, and die. If you defend yourself, you will be demonized, persecuted, and prosecuted. The government will spend millions to try to find some way to put you in jail. Your choices will be total economic ruin; plead guilty, go to jail, and be murdered there; or suicide.


I wish I could, in good conscience, put that in purple.

You're right and I understand it would be a bad move, but I don't think those in power to pass these unwise anti-SYG laws realize
they are effecting more than just current gun owners.

 

[Doug]

You're right and I understand it would be a bad move, but I don't think those in power to pass these unwise anti-SYG laws realize
they are effecting more than just current gun owners.

They really don't care.
They will gladly make it illegal to defend yourself unless a "reasonable person" would believe his life was in danger as long as THEY get to decide what is reasonable. For example, some people believe it was reasonable for TM to beat GZ because TM was being followed. They also believe that, since GZ didn't die, he was never in any real danger.

 

[KG1]

They really don't care.
They will gladly make it illegal to defend yourself unless a "reasonable person" would believe his life was in danger as long as THEY get to decide what is reasonable. For example, some people believe it was reasonable for TM to beat GZ because TM was being followed. They also believe that, since GZ didn't die, he was never in any real danger.

And some justice for Trayvon acolytes even comment that GZ should have just taken a beating.

 

[Jimb]

Cant see this ever making it past the debate stage here at home. Will still be a waste time and $$$ though

 

[brotherbill3]

Ok, let's review.

1. In 1877 the Indiana Supreme Court abolished the duty to retreat in case entitled Runyan v. State of Indiana.

"When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justiciable."

2. Duty to retreat safely is a minority position. Six states have such a duty now.

3. In 2005 a state with a large number of electoral votes, Florida, abolished its duty to retreat.

4. In an outbreak of MeTooism the Indiana General Assembly in 2005 believed that "dammit, boy, just don't stand there, write down that we don't have no duty to retreat no how." Understand that at the time, 2005 not a single court in Indiana's 92 counties was instructing juries that a person had a duty to retreat. It was crystal clear that there was no duty to retreat.

5. Indiana codified the lack of duty to retreat in 2005.

6. If the General Assembly repeals the 2005 statute, we still have no duty to retreat.

7. If the General Assembly reimposes a duty to retreat, however unlikely, it still does not change the reasonable man/person standard for self-defense and would not apply to a fact pattern such as Florida v. Zimmerman.

Thanks for this. ... very useful as I am looking to address SYG/CD in other places. ...

Q? for you - when & where did the 'duty to retreat' requirements start to appear? ...

TYIA
0

 

[Kirk Freeman]

Q? for you - when & where did the 'duty to retreat' requirements start to appear

Centuries ago. English common law.* Thought to prevent unneeded bloodshed in the kingdom and prevent mayhem (mayhem, a common law crime, injuries to men who could fight for the king).

Better to ask a law professor for the origins. Must be one particular case that is the origin but I do not know it. I'd have to look.

*Remember the English common law was riddled with exceptions as to retreat:

1. Had to do it safely.
2. Did not apply in your home.'
3. Did not apply if you were acting to prevent a felony (i.e. someone is robbing you, no duty to retreat).

 

[ashby koss]

You shouldn't have to retreat and you especially shouldn't have to prove in court that you attempted to retreat "enough". For some people you could never retreat enough, leaving only your own death as an acceptable alternative to self defense.

That would be the Possum law

 

[brotherbill3]

Centuries ago. English common law.* Thought to prevent unneeded bloodshed in the kingdom and prevent mayhem (mayhem, a common law crime, injuries to men who could fight for the king).

Better to ask a law professor for the origins. Must be one particular case that is the origin but I do not know it. I'd have to look.

*Remember the English common law was riddled with exceptions as to retreat:

1. Had to do it safely.
2. Did not apply in your home.'
3. Did not apply if you were acting to prevent a felony (i.e. someone is robbing you, no duty to retreat).

SOOO basically - you do not have to retreat - except when ( way back then as now) in the same conditions as IC spells out, and which is simliar to most other states have defined in their SYG/CD laws? ...

I guess I'm failing to see a distict difference ... EXCEPT for locale's that SPELL OUT a duty to retreat (even in the home) ???

I thought you were our 'history/law' professor. You do a good job of it! Thanks. I have research to do at some point today...

 

[Kirk Freeman]

you do not have to retreat - except when ( way back then as now) in the same conditions as IC spells out

There is no duty to retreat in the IC.

I guess I'm failing to see a distict difference ... EXCEPT for locale's that SPELL OUT a duty to retreat (even in the home) ???[\QUOTE]

A handful of states have a duty to retreat in their statutes and jury instructions. One state, Massachusetts, had a convulted case which required retreat from the home (abolishing the Castle Doctrine). There was much running around the conference room table about that case and it is confusing and has nothing to do with Indiana.

 

[octalman]

How many have seen the recent new reports of Smash Mobs? Youthful miscreants running through stores, mall, or streets vandalizing property as they go. A mob headed your way would seem to present a significant threat of bodily harm. Retreat, if possible, would be my choice. If this youthful bit of fun continues, I fear someone will fear for their life and act accordingly.

 

[brotherbill3]

you do not have to retreat - except when ( way back then as now) in the same conditions as IC spells out, and which is simliar to most other states have defined in their SYG/CD laws? ...

There is no duty to retreat in the IC.

I was trying to agree here. We (Modern Indiana) spell out the 'instances' or 'conditions' for acceptable/legal (justiciable?) use of lethal force
These 'conditions' seem to match (at least some of) the expection of (English Common Law) for a 'duty to retreat' ...
(I looked up "Mayhem" and got a wiki article indicating is has to do with maiming someone; I would call that great bodily harm ...
perhaps I'm tripping over a technicality ???) ...

I guess I'm failing to see a distict difference ... EXCEPT for locale's that SPELL OUT a duty to retreat (even in the home) ???

A handful of states have a duty to retreat in their statutes and jury instructions. One state, Massachusetts, had a convulted case which required retreat from the home (abolishing the Castle Doctrine). There was much running around the conference room table about that case and it is confusing and has nothing to do with Indiana.

What I guess I'm getting at is that the laws we "NOW" call "Stand Your Ground" or "Castle Doctrine" are simply the 'codification' of the traditional, pre-liberalizing / "puss-ification" of America (and apparently England) 'common law' understanding and allowances for use of lethal (and perhaps even non lethal) force against an assailant/thief.

In contrast to this: A few (I think your other post said 6) states have codified a requirement to retreat, (or at least make an effort) if possible;
which is counter to this understanding of common-law, upon which our justice system was designed to function;
and also it would be counter to the traditional understanding of the rights of an individual to defend themselves, their family and their property.

Is that clearer? Am I more on target here?

 

[Kirk Freeman]

We (Modern Indiana) spell out the 'instances' or 'conditions' for acceptable/legal (justiciable?) use of lethal force

The question that should be in mind is: would a reasonable person use deadly force if they reasonably believed that they were in imminent risk of serious bodily injury or death.

These 'conditions' seem to match (at least some of) the expection of (English Common Law) for a 'duty to retreat'

The UK abolished the duty to retreat by statute in 1967.

The controlling factor is always reasonableness.

What I guess I'm getting at is that the laws we "NOW" call "Stand Your Ground" or "Castle Doctrine" are simply the 'codification' of the traditional, pre-liberalizing / "puss-ification" of America (and apparently England) 'common law' understanding and allowances for use of lethal (and perhaps even non lethal) force against an assailant/thief.

It gets confusing because of the media and political filter.

"Castle Doctrine" was simply an exception to the duty to retreat safely at common law. It became transmorgified into some sort of aegis in the world of politics. It most certainly is not.

"Stand your ground" is simply the abolition of the duty to retreat with a hip, buzzworthy political name. Florida, an important political state with 25 electoral votes, made news in 2005. The media made it seem like Florida was the very first state in the Union to abolish the duty to retreat. Florida was actually one of the last to do so.

It became so moronic that in Indiana, a state which abolished the duty to retreat in 1877, passed a statute to codify the absence of a duty to retreat in 2005 after the news was all agush over Florida. Aagain the Media treated this as some sort of new wave trend.

A few (I think your other post said 6) states have codified a requirement to retreat, (or at least make an effort) if possible;
which is counter to this understanding of common-law,

The duty to retreat shifts the advantage to the prosecution. It creates an additional step for the defendant and makes self-defense more subjective than objective ("well, he should have been able to retreat, I wouold have been able").

 

[brotherbill3]

Thanks Kirk - I find this very helpful. I maybe back with more Q? ... hope that's OK ... but I think I get it - at least for now. I have to stew on it
... I greatly appreciate the insights and information ... and you ignoring my obvious typos. sheesh. (sorry) ...

 

[brotherbill3]

Kirk - try to put your reverse thinking ( illogically logically thinking ) hat on ...

Was there a 'movement' (in the US, England can go swim the channel IMO for this)
... to 'remove the exceptions' to the 'duty to retreat' in certain areas or over a certain time frame
... I am trying to help clarify and crystalize it for those (potentially) being swayed by the 'call to review' the current laws
... to explain the 'the duty to retreat' is really the 'neo-progressive' thinking - (we know it is) -
... so as to beable to say until "____" (year / state / occurence) the SYG/CD laws were infact 'the norm'
... ... ... (or the 'common law' with the exception allowances)
... - as they appear to be now - whether called that (like FL) or not (like IN, predating the 'craze')

So I guess the reverse thinking trying to figure out when the movement to remove the exceptions to the duty to retreat begin in the USA?
Was there a first state to codify that you had a 'duty to retreat' with out exception?

... to me it sounds like the trend has been largely the other direction and not for a short time. ...
... but it was a given a 'klitchy' new name (or two ... in SYG / CD ) and sold to the masses ...
... and it simply put 'clearly in place' - what has be the standard expectation for most cases ...

 

[Redhorse]

This is why I love indiana. A lot of people here want to act like they hate it here but at least the legisture recognizes our rights unlike New York or California.

 

[Kirk Freeman]

Was there a 'movement' (in the US, England can go swim the channel IMO for this)
... to 'remove the exceptions' to the 'duty to retreat' in certain areas or over a certain time frame

No, there is no movement.

Again, there was one convulted Massachusetts Supreme Court case which held that there was a duty to retreat inside that person's home.

So I guess the reverse thinking trying to figure out when the movement to remove the exceptions to the duty to retreat begin in the USA?
Was there a first state to codify that you had a 'duty to retreat' with out exception?

There has never been a movement to remove the exceptions to the duty to retreat.

Indeed, post-Civil War (which taught society that the real killing started when the retreating started) there was a strong movement to abolish the duty to retreat safely.