Are You Going to Jail? (The next installment)

[sonofagun]

Remember, the IC says you can use deadly force (paraphrasing) to stop an invasion or attack on your home or curtilage.

So, since the purps were out of the shed and leaving the premises in this scenario, the shooter would not be preventing or terminating an invasion of his curtilage.

The shooting would then fall under protection of property AND subsection a.

Uh..Oh!

 

[Amattern]

The argument that they were fleeing would be out the window. It's already been stated they were 21 feet away and heading directly toward you.

 

[jeremy]

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.

Blah, blah, blah...
No real important info here other than laying down the storyline...

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.

Which door did they exit from?!
The one towards you or the the one away from you...

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

Are you going to jail?

Guy

Am I going to Jail?!

 

[moischmoe]

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.

I agree. Probably going to jail. Also, life was not in danger. Reasonable force would be justified in this situation though.

 

[Silverado]

The argument that they were fleeing would be out the window. It's already been stated they were 21 feet away and heading directly toward you.

If one of them is still alive, NO argument is out the window.

 

[KDUBCR250]

Most people on this site are familiar with the Tueller drill and "21' rule"; there were 2 against 1--disparity of force; they were coming AT you. Arguably they didn't need to be armed to be a threat to you and given that they came AT you while committing a crime, I think the shooting is legit. What an anti-gun owner bigot of a prosecutor would make of it is another question, but with a good lawyer I think this defensible.

 

[Sylvain]

I know it's not the question asked by the OP but I would not shoot in that situation.
I would not feel that my life is in danger and I would not kill someone to protect my property (even if I could legally do so).
Im not going to kill a man for a generator, they can have the damn thing and I can live knowing that I didnt kill another human being.

That being said I only said I wouldnt kill to defend my property, that doesnt mean I would not hurt the robber really bad to get my property.
If he fights back then deadly force is an option for me.But I would not shoot at someone running away from my house.

 

[moischmoe]

Remember, the IC says you can use deadly force (paraphrasing) to stop an invasion or attack on your home or curtilage.
If your shed is part of your curtilage, then you're good to go, but that would be determined in court. Most likely the courts are gonna say "no" and your going down.
This isn't 100% relevant to a shooting case, but was the first case that I came across that discusses what a curtilage is

Taken from Holder v State
No. 87S05-0505-CR-194 SUPREME COURT OF INDIANA 847 N.E.2d 930; 2006 Ind. LEXIS 413

 

[eldirector]

My opinion, is that this is a bad shoot.

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

and

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

You can only use the above in specific circumstances, and that is to prevent seriously body injury on yourself or a third person, to prevent a forcible felony, and to prevent an attack on your home/curtilage/motor vehicle.

Everything else is "reasonable force", which then must be stuff NOT on the serious bodily injury list.

This was not a forcible felony. This was not your curtilage or home. You were not protecting yourself from an unlawful use of force.

You COULD have held them at gunpoint, as a citizens arrest.

 

[ArcadiaGP]

I dunno, if there are two strange people running toward me (shed in front of me, yeah?) Who's to judge their intentions? I don't have time to know if they're fleeing or coming at me to attack.

 

[Cpt Caveman]

I'm with eldirector.
I'd level the shotgun at 'em and tell 'em to drop the genny and get on the ground while slowly backing away to increase my distance. I'm sure my wife would be calling the sheriff by then with all my hollerin'. If they complied good they're going to jail. If they run FROM me with or without the genny I don't shoot. If they run at me ( attacking) they're gonna die.
Can't shoot a feller for stealing you generator unless you feel like you or a loved one was in danger.
Courthouses don't always mete out justice.

 

[lrahm]

Probably so. First the shed is not attached to the house, hence no burglary. Probably just theft. You might be able to convince the prosecutor that the person running out of the shed was threatening you if he was running towards you and it was a natural reaction but doutful. I don't think that you could convince a jury that your life was in danger. It would be okay to hold them at gunpoint until the police arrived (not knowing what they have on them and if you feel threatened) but if they decide to make a break...sorry.

Please daddy, tell us how close we are (comic relief).

 

[lrahm]

I'd say that if the suspects were in the act of fleeing, that the attack or entry into the curtilage was no longer occurring, and you may not reasonably use deadly force to prevent what is essentially a theft of your property. Of course, it would depend on the apparent intentions of the thieves (attacking you or attempting to avoid you and flee) that would probably determine the reasonableness of your actions regarding the use of deadly force. Best not to have entrance wounds in the backs of the suspects, or anything like that.

Wounds to the back are okay in certain situations. The main being if the bad guy made a forcible felony (murder, rape). If you are convinced that letting him go, he will do the same act, deadly force is permissible.

 

[7urtle]

Trained athletes who could defend a RNC are not the type to rob tool sheds. People dont need to be so afraid of criminals. Far more often than not, people who rob/steal are kids or drug addicts.

You've been fighting since you were 8 and you dont have enough confidence in yourself or your abilities to take down a couple of nobodies. Take it from me, thats really dumb.

a few of my old wrestling buddies who went downstate are now crackheads

 

[GuyRelford]

Great point justjoe. Also, I'm thinking that the mixed responses to the OP's question indicates there is a great need for a Gun Law Course.

I just happen to offer one of those.

 

[GuyRelford]

Blah, blah, blah...
No real important info here other than laying down the storyline.

Actually, there is information in that section which is critically relevant to the analysis.

 

[jeremy]

Actually, there is information in that section which is critically relevant to the analysis.

OK, there is. I'll give you that.

 

[mainjet]

I think that you are going to jail if you cannot show reasonably that your life was in danger. Someone for stealing your generator IMHO is not in itself a reason to fire. I may feel like it and I would be ready should the situation escalate to the point that they are making moves toward me or if they have a gun.

He could have called the police when he noticed the light on and suspected someone was there before going outside. so he probably would have to explain not making that call. That may not in itself be a reason to go to jail but it would possible cause the jury to question it if it went that far.

To shoot just because they come out of the shed with your property is not a reason to use deadly force. I would say that you should at least command them to stop and drop the generator. Then you go from there as it escalates. I read nothing in the scenario that indicated that he was in fear of his life or that they made any move toward him.

plain and simple, if your generator is sitting in your driveway and two guys run up, grab it and run, do you just shoot them? I think that would look very questionable. The robbers were never really given the chance to drop it. If a cop came upon a robber and immediately shot them I think that the public would not think that reasonable either.

I think in the IC the critical words are "reasonable force". I would say that this had not yet risen to the level of deadly force quite yet. Also, in the IC I believe that deadly force is realy intended to protect life and persons from bodily injury. not necessarily property when you are talking about using deadly force. Deadly force should be reserved for only protecting life or limb. Theft of property is maddening but can be replaced. You have the right to protect your property and stop the theft but do you use deadly force if you are not physically threatened?

 

[T.Lex]

I know what I think the answer is.

For edification (and perhaps mis-direction) "curtilage" in Indiana has a broad definition. Justice Boehm did a good survey of caselaw in 2000, in Sowers v. State:
http://caselaw.findlaw.com/in-supreme-court/1373128.html

Also, do you guys think it important that the statute sometimes says "reasonable force, including deadly force" in some places, but just "reasonable force" when it comes to property?

 

[Mr. Habib]

The shed is inside my fenced yard. IMO that meets the curtilage requirement. That would allow deadly force. Two against one, and at least one of them is large enough run while carrying a generator. Disparity of force. Plus, they are running toward me. That would indicate to me that they intended to attack. Doing so even though they know that I am armed with a shotgun, would lead me to reasonably believe they were either armed, high, or desperate. Any of these would make them even more of a threat. I would probably go to jail until the police sort things out, but I wouldn't expect to stay.