Will You be Convicted of a Crime?

[NIFT]

The immunity provided by Ind. Code 35-41-3-2 only applies if you used force "by reasonable means necessary" as defined in that statute. So the question becomes - who decides that? And whoever decides that, what would they decide in this situation?

Answer (as far as I know):
Bench trial--judge
Jury trial--jury.

Did the kids have the ability to inflict SBI? I think so; a "reasonable" person, under the circumstances, should not be expected to wait until being able to identify whether guns are real or not.

Did the kids have the opportunity to inflict SBI, i.e., were they in range? I think so, but I suspect most jury members would have to be convinced 35 feet is "close enough" (Tueller drill).

Was there iminent jeopardy? Very subjective call as to whether a "reasonable" person would, under the circumstances, be justified in believing he will be attacked immediately and suffer SBI.

Preclusion? Don't know whether, in Indiana, a person must have no option (such as running away) other than lethal force, and the case, as presented, did not indicate viable alternatives.

Finally, I am almost positive Guy has some un-well-known case law example(s) to support the likely outcome of a criminal charge in the hypothetical.

One thing for sure: nothing is for sure in advance. Juries are fickle!

However, using beyond a reasoanable doubt as the standard, it would be hard for a prosecutor to convince me--beyond a reasonable doubt--the shooting could not have been self defense.

 

[DFM914]

Be absolutely sure of your target and what's around, behind and to the side of your target. I would not open fire on dark shadows.

 

[kludge]

However, using beyond a reasoanable doubt as the standard, it would be hard for a prosecutor to convince me--beyond a reasonable doubt--the shooting could not have been self defense.

Yes, however, "beyond reasonable doubt" is not the standard for an affirmative defense.

In an affirmative defense (self-defense) you admit to the elements of the crime. The prosecutor does not have to establish his/her case beyond a reasonable doubt. You did that for him/her because you admit that you held the gun, you willfully pulled the trigger, and two teenagers died as a result.

Now you must prove to a judge/jury that you were justified.

In some states (fortunately not Indiana) all self defense cases go to a grand jury; there is no discretion on the part of the prosecutor to bring charges.

 

[NIFT]

Yes, however, "beyond reasonable doubt" is not the standard for an affirmative defense.

In an affirmative defense (self-defense) you admit to the elements of the crime. The prosecutor does not have to establish his/her case beyond a reasonable doubt. You did that for him/her because you admit that you held the gun, you willfully pulled the trigger, and two teenagers died as a result.

Now you must prove to a judge/jury that you were justified.

In some states (fortunately not Indiana) all self defense cases go to a grand jury; there is no discretion on the part of the prosecutor to bring charges.

I was not aware that the burden of proof, in Indiana, in self-defense cases lies with the defendant. If so, then I suspect the level of proof is preponderance of the evidence, not beyond a reasonable doubt.

Even so, it would still be hard to convince me, with the given case, there was not self-defense. I will assume innocence until "proven" otherwise.

 

[finity]

Yes, however, "beyond reasonable doubt" is not the standard for an affirmative defense.

In an affirmative defense (self-defense) you admit to the elements of the crime. The prosecutor does not have to establish his/her case beyond a reasonable doubt. You did that for him/her because you admit that you held the gun, you willfully pulled the trigger, and two teenagers died as a result.

Now you must prove to a judge/jury that you were justified.

In some states (fortunately not Indiana) all self defense cases go to a grand jury; there is no discretion on the part of the prosecutor to bring charges.

That's sort of true.

You must admit that you did in fact pull the trigger & then claim self-defense as justification for your actions.

After that though the prosecutor still has to prove beyond a reasonable doubt that you WEREN'T really justified in claiming self-defense.

IOW, The prosecutors burden shifts from proving the crime occured (killing/injuring someone) & that you did it to proving that you didn't meet the elements of justifiable self-defense.

There are three elements the prosecutor must disprove to not allow a claim of self-defense. Those elements are (from Miller v State):

"When raised, a defendant must establish that he or she was in a place where he or she had the right to be, acted without fault, and was in reasonable fear or apprehension of death or great bodily harm."

From the scenario given I think that all those elements were met so self-defense was a valid claim.

I still say no charges or at least no conviction.

 

[GuyRelford]

Answer (as far as I know):
Bench trial--judge
Jury trial--jury.

That's right - so the idea that you "can't be prosecuted" or "can't be sued" because of the immunity statute is incorrect. If you are prosecuted - and/or sued - a judge (in a bench trial) or a jury would very likely have to decide whether you met the standard for the justifiable use of deadly force under Indiana law - after a full trial. (Or trials.)

(Tueller drill).

Excellent - the Tueller concepts will be critical in this scenario.

Don't know whether, in Indiana, a person must have no option (such as running away) other than lethal force.

If a person is otherwise justified in using deadly force under Ind. Code 35-41-3-2, there is "no duty to retreat."

Finally, I am almost positive Guy has some un-well-known case law example(s) to support the likely outcome of a criminal charge in the hypothetical.

You know me only too well.

 

[GuyRelford]

That's sort of true.

You must admit that you did in fact pull the trigger & then claim self-defense as justification for your actions.

After that though the prosecutor still has to prove beyond a reasonable doubt that you WEREN'T really justified in claiming self-defense.

IOW, The prosecutors burden shifts from proving the crime occured (killing/injuring someone) & that you did it to proving that you didn't meet the elements of justifiable self-defense.

That's exactly right. Once a defendant raises self defense as an issue, the proseution must disprove at least one element of the defense "beyond a reasonable doubt."

 

[henktermaat]

1) Am I really in fear of my life, or not?
2) If yes, shoot to stop threat.
3) I believe that's legal in Indiana.

 

[85t5mcss]

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;

You have a valid Indiana LTCH. You and your wife As you're walking past a particularly dark alley, you hear the words, "give me your money or you're gonna ****'ing die." You look down the alley and can't see much - it's just too dark.
Iminent threat-Check
Then you see three dark shapes running toward you
Still a threat-Check
But you realize that two of those shapes appear to have pistols in their hands.
Pistols=threat-Check
The third individual is no longer visible.
Witness
While you're waiting, a terrified teenager appears near you, screaming that you just shot his friends - who were just having fun in the alley with squirt guns, "pretending to be gangsters." The cops and EMTs arrive and confirm that two 15 year-olds are dead, holding plastic squirt guns in their hands.
Witness u were being threatened
Will you be convicted of a crime?
With the way our system sometimes works-yes. But acquitted
Guy

Threatened=Yes
Justified with deadly force=Yes

They would have a hard time convincing 12 that the gangsters were not a threat and that u acted in a malicious way.

 

[caddywhompus]

I was in fear for my life and the lives of others. Please allow me to contact my lawyer...

 

[kludge]

There are three elements the prosecutor must disprove to not allow a claim of self-defense. Those elements are (from Miller v State):

"When raised, a defendant must establish that he or she was in a place where he or she had the right to be, acted without fault, and was in reasonable fear or apprehension of death or great bodily harm."

Thanks, finity, for the explanation and case history.

I imainge that it's the "acted without fault" thing that a civil case could potentially rest on with a sympathetic judge/jury.

 

[yotewacker]

A case like this is why you do not want a custom gun or very specially designed ammo.
So a jury will not get the idea that you were looking for a reason to use or pull your firearm to kill someone. You want it to be that you had a factory made firearm shooting factory made ammo. Don't go tell anyone quote " I killed that *****ng A*****ole" or such. Don't do anything that might have a shadow of a doubt that you planed, enjoyed, or was getting even with the victims for there action.
No special fancy guns, holsters, or modified guns. It will look bad when a jury finds out.

The part of your rights that says "anything you say, can and will be held against you", is true and will be held against you. I've seen this many times come back and bite a victim in the a** for talking without thinking.

 

[eldirector]

For the "defense" I propose a simple demonstration:

Take the jury on a field trip, to that same sidewalk, passed the same alley, also late at night. While the defense attorney is blabbering on, have the jury hear "THERE THEY ARE! LET'S KILL THEM ALL!" shouted from the alley, followed by three dark figures, holding guns, charging them from the shadows. Once the jury has changed their shorts, let 3 uniformed police officers step out of the shadows holding SQUIRT GUNS.

I'm sure the jury would have a firm understanding of "reasonable".

 

[Bill B]

A case like this is why you do not want a custom gun or very specially designed ammo.
So a jury will not get the idea that you were looking for a reason to use or pull your firearm to kill someone. You want it to be that you had a factory made firearm shooting factory made ammo. ...No special fancy guns, holsters, or modified guns. It will look bad when a jury finds out.

I've heard this many times, but never from an attorney (that I know of) and nobody has ever provided a citation or reference that shows that this has ever occured.
I agree with the rest of you post about keeping your mouth shut

 

[GuyRelford]

I've heard this many times, but never from an attorney (that I know of) and nobody has ever provided a citation or reference that shows that this has ever occured.
I agree with the rest of you post about keeping your mouth shut

I've also heard this warning for years, but I've only heard of one situation in which something similar occurred - in Arizona, I believe. It's been a while since I read about it, but I seem to recall that a prosecutor made a big deal out of the fact that the defendant used a 10mm in a questionable self-defense shooting. Based on some jury members' comments after they rejected his claim of self defense, they seemed to be influenced by the fact that the defendant carried an "extra lethal" firearm (due to the muzzle velocities that it generated), which somehow made them think that he was looking to kill someone.

I understand the argument, but to me, it's silly. You're either legally justified in the use of deadly force or you're not. If you are, you can shoot the BG with a stock gun, shoot him with a modified gun and/or with personal defense ammo, or hit them over the head with a bowlng pin. It really shouldn't matter. Legally, there's no such thing as "really, really deadly force."

That's not legal advice - just my personal opinion. (As demonstrated by the gun that I carry and the ammo with which it's loaded.)

In that regard, for the sake of the scenario I posted, let's assume that your gun was a Glock 30, .45 ACP with an after-market 3.5 lb. trigger, loaded with Federal Hydra-Shoks.

Guy

 

[Compatriot G]

I remember hearing about an incident, which would be similar to this scenario, on the radio. I believe it happened in Anderson. A man walks into a liquor store. He has a "gun" in his jacket pocket and announces his intention to rob the store. The clerk pulls his gun and shoots and kills the would-be robber. Come to find out, the "gun" in his pocket was a comb. According to the news report, the store clerk wasn't charged with a crime because he acted in self-defense.

 

[NIFT]

I've also heard this warning for years, but I've only heard of one situation in which something similar occurred - in Arizona, I believe. It's been a while since I read about it, but I seem to recall that a prosecutor made a big deal out of the fact that the defendant used a 10mm in a questionable self-defense shooting. Guy

Yep. The case was Harold Fish (featured on Dateline "Trail of Evidence.)
http://www.msnbc.msn.com/id/15199221/ns/dateline_nbc-crime_reports/t/trail-evidence/

Mike Lessler, prosecutor: “Mr. Fish shot him three time in the chest with this high powered gun, hollow point bullets and caused his death. That’s murder.”
This juror was disturbed by the type of bullets Fish used.
Elliot(Juror): “The whole hollow point thing bothered me. That bullet is designed to do as much damage as absolutely possible. It’s designed to kill.”

It is a fascinating case (as long as you are not Hal Fish or one of his family.) He got ten years, federal, with no parole. Efforts to have him re-tried and legislation to facilitate such were consistently shot down and vetoed by the then Governor (drum roll, please) Janet Napolitano!

Eventually, on July 21, 2009, after almost three years in the "joint," Fish's case was reversed and remanded, and he went free--totally financially ruined.

I use this case in my classes to illustrate why one should avoid shooting if at all possible.

By the way, the gun was a Kimber 10mm with Federal Hydra-Shok ammunition.

Worth looking into, Guy, as a case to present to students.

As a complete contrast, I use the case of Eugene Bayliss, Colorado Springs (1993) wannabe outlaw biker who walked into a biker bar with a full-auto AK, announced, "This is going to be an adventure," killed two people, maimed five others, and was charged with everything from death-penalty capital murder to spitting on the sidewalk, and everything in between. Guess what: he was acquitted on all charges--self defense!

 

[GuyRelford]

Yep. The case was Harold Fish (featured on Dateline "Trail of Evidence.)
Trail of evidence - Dateline NBC - Crime reports - Trail of Evidence - msnbc.com

Thanks, Bob! I'm glad I remembered it correctly, although I remembered the prosecutor's argument about the 10mm more than the Hydra-Shoks. It's a good lesson as to what a jury can do!

Scary - because "really really deadly force" argument really has no legal basis.

 

[NIFT]

Thanks, Bob! I'm glad I remembered it correctly, although I remembered the prosecutor's argument about the 10mm more than the Hydra-Shoks. It's a good lesson as to what a jury can do!

Scary - because "really really deadly force" argument really has no legal basis.

Basis schmasis--it worked with the jury!

 

[GuyRelford]

Basis schmasis--it worked with the jury!

True! My point is that it shouldn't have - so the system failed on several levels: prosecutor, judge, defense lawyer. At least the conviction was eventually over-turned, after Mr. Fish had been locked for years and was probably broke from legal expenses. Very scary indeed.