The right to defend oneself, other persons and home is
a fundamental United States legal principle, derived from English Common Law. The Indiana basis is statute IC 35-41-3-2, Use of
force to protect person or property ... "(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. (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”.
It's especially important to understand and
remember that the statute specifically uses the preconditions “reasonably
believes” and "necessary to prevent
or terminate" the offense.
Important Definitions
Since they’re intrinsic
to the legal defense, these terms warrant clarification …
Reasonable belief (Reasonableness): Reasonable belief/reasonableness are nebulous terms and
concepts. The following definitions and case law offer better clarity: “possessing rational faculty; capable of
coherent and reality-based thinking; reflecting good judgment … sensible” -Black’s
Law Dictionary, Sixth Pocket Edition, 2021; “A claim of
reasonableness has both subjective and objective components, as follows: (1) a
defendant must have actually believed that the use of force was necessary to
protect himself or herself; and (2) the belief must have been one that a
reasonable person would have held under the circumstances.” -Schermerhorn v.
State, 61 N.E.3d 375 (IN Ct. App. 2016); Danger need not be
actual; it need be merely reasonably perceived. But danger cannot be merely
speculative; it must be based upon reason and facts. Franklin v State, 364
N.E.2d 1019 (IN Sup. Ct. 1977)
Subjective: "Based on an individual’s perceptions, feelings, or intentions, as opposed to externally verifiable phenomena.” -Black's Law Dictionary, Sixth Pocket Edition, 2021
Objective: "1. Of, relating to, or based on externally verifiable phenomena, as opposed to an individual’s perceptions, feelings, or intentions; 2. Without bias or prejudice; disinterested.” -Black's Law Dictionary, Sixth Pocket Edition, 2021
Imminent: "1. (Of a danger or calamity) threatening to occur immediately; dangerously impending.” -Black's Law Dictionary, Sixth Pocket Edition, 2021
Necessity: “ … A justification defense for a person who acts in an emergency that he or she did not create and who commits a harm that is less severe than the harm that would have occurred but for the person’s actions.” -Black’s Law Dictionary, Sixth Pocket Edition, 2021
Serious
bodily injury “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; IC 35-31.5-2-292
Forcible felony “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 35-31.5-2-138
Provocation (provoke/provoker): “A
person who recklessly, knowingly, or intentionally engages in conduct that is
likely to provoke a reasonable person to commit battery commits provocation, a
Class C infraction.” IC 35-42-2-3; “2. Something (such as words or actions) that affects a
person’s reason and self-control, esp. causing the person to commit a crime
impulsively.” -Black’s Law
Dictionary, Sixth Pocket Edition, 2021
Battery “(c)
Except as provided in subsections (d) through (k), a person who knowingly or
intentionally: (1) touches another person in a rude, insolent, or angry manner;”
IC 35-42-2-1 “Criminal law. The nonconsensual touching of, or use of
force against, the body of another with the intent to cause harmful or
offensive contact.” -Black’s Law Dictionary, Sixth Pocket Edition, 2021
Legal Elements of Self
Defense
A valid claim of defense of
oneself or another person is legal justification for an otherwise criminal act. -IC 35-41-3-2(a); Wallace v. State, 725 N.E.2d 837, 840
(Ind. 2000).
to prevail on such a claim,
the defendant must show that he: (1) was in a place where he had a right to be;
(2) did not provoke, instigate, or participate willingly in the violence; and
(3) had a reasonable fear of death or great bodily harm. -McEwen v. State,
695 N.E.2d 79, 90 (Ind. 1998)
When a claim of self-defense
is raised and finds support in the evidence, the State has the burden of
negating at least one of the necessary elements. Wilson v. Indiana, 770
N.E.2d 799 (2002), Supreme Court of Indiana
Use of Deadly Force – Practical Framework
Circumstances could
necessitate your use of force (perhaps lethal) to thwart an assailant. From myriad
legal, moral, and practical standpoints, deadly force should be the very last
resort. Below is a model to more clearly ascertain the reasonableness and necessity
for the deadly force. You might think of this as “rules of engagement” for
civilians. Though not specified under Indiana law, three concurrent elements
would more definitively justify such a grave response …
A. Intent (or Jeopardy): The assailant’s actions
and/or words clearly signal his/her intention to commit
violence against another person. Obvious examples would be someone deliberately
pointing a gun, knife, or other deadly weapon at you; threatening speech such
as “I’m gonna kill”; an obviously malicious intruder breaking down your door.
B. Capacity (or Ability): Assailant
possesses the power to kill, cripple or incapacitate, indicated by:
1. Deadly (or incapacitating) weapon: his/her
brandishing a gun, knife, club, hammer, vehicle, bottle, pepper spray, taser, stun gun, etc.
2. Disparity of
force: his/her overwhelming size, strength, fighting skill; multiple attackers.
People in greater inherent danger would include the elderly; physically handicapped;
small women; children; someone with heart or respiratory problems,
osteoporosis, etc.
3. Tactical
advantage: victim is physically unable to evade or safely escape or deter;
victim has no viable defensive weapon immediately available.
C. Opportunity: The assailant is capable
of imminently inflicting severe injury, given conditions including:
1. Proximity – based
upon law enforcement research, an attacker within 21 feet can potentially impart
deadly force to a victim within 1.5 seconds. Commonly referred to as “Tueller
Rule,” it should
instead be considered a guideline.
2. No barriers or obstacles (e.g., door,
wall) are available to prevent or slow the attack.
3. Terrain – the ground (e.g., snow, ice),
landscape (e.g., hills, waterways) or other conditions (e.g., darkness) decidedly
favor the aggressor.
Non-Justification
Many felonies may not necessarily or likely pose imminent death or great bodily harm, especially if deadly weapons aren’t involved. For example, you discover a burglar exiting your home with your personal property items. You might feel angry and justified in using deadly force to stop the theft. But absent any reasonable danger of serious bodily harm to you or other person, shooting the intruder would likely be deemed unlawful. At the very least it would be immoral and unwise. A prosecutor could file criminal charges, claiming your extreme force wasn’t reasonable or necessary and instead constituted willful and wanton misconduct. You could also face other substantial legal and practical detriments including criminal defense and civil litigation costs, hassle, and time; forfeiture of gun rights; job/career jeopardy; public family dissension; public ridicule; emotional problems; etc.
Presumption of Innocence; Affirmative Defense
It’s important to understand two fundamental but complex legal standards: presumption of innocence, and affirmative defense. Under Indiana law and throughout the United States, a defendant is presumed innocent until proven guilty. Indiana law guarantees the presumption of innocence for all defendants throughout the criminal process, including trial. The state bears the burden of proving a defendant's guilt beyond a reasonable doubt, and the defendant is treated as innocent until proven guilty. The applicable Indiana statute is IC 35-41-4-1 Standard of proof … Sec. 1. (a) “A person may be convicted of an offense only if his guilt is proved beyond a reasonable doubt.”
But under Indiana (and other
states’) law, when a person employs deadly or non-deadly force (even in
self-defense), that in and of itself can constitute a crime (e.g., battery).
Accordingly, under the Affirmative Defense principle, the burden of proof
shifts to the defendant (ironically, the original victim) to prove innocence
with supporting evidence. He/she would stipulate that such force was necessary
and justified under Indiana statute IC 35-41-3-1, "A person is justified in engaging in conduct
otherwise prohibited if he has legal authority to do so.” The defendant
must show that they reasonably believed their conduct was authorized by law,
but the prosecutor must prove that the defense is invalid given the facts and evidence.
Self Defense Standards
Although not explicitly stipulated in Indiana law, the following five criteria are generally required to justify the use of deadly force:
1. Innocence – the defendant did not provoke the force
2. Imminence – the danger was immediate and clear
3. Proportionality – the degree of defensive force used was equivalent and/or necessary to prevent or stop the harm.
4. Avoidance – distinct effort was made to evade or escape the threat
5. Reasonableness – based on both objective and subjective analyses, and how most people would have probably responded to the circumstances
No Duty to Retreat
The “no duty to retreat” defense (Indiana statute IC 35-41-3-2) is not absolute. The prosecution might argue that the defendant could and should have safely retreated, and therefore the use of force was not necessary or reasonable.
Deadly Force Alternatives
It’s likely the judge and jury will consider options that might have been available to the defendant instead of shooting, e.g., less lethal weapon, retreat, take cover and/or await police. Courts recognize that violent encounters often occur quickly. As such, the defendant’s decisions aren’t expected to be perfect, but they are expected to be reasonable. Each juror may wonder what they would have done in the same situation. The defendant should have an articulable, plausible explanation as to why nonlethal responses weren’t or couldn’t be used.
The Best Response
Despite there being no duty to retreat, given the moral ambiguity, along with the legal, financial, emotional and other consequences, I strongly recommend that deadly force not be used except for circumstances in which imminent death or great bodily harm to you or other persons is clearly probable. Deadly force should not be employed to protect mere property (vehicle, pet, or even unoccupied home). It’s always best to maintain good situational awareness and try to avoid or escape any attack. Stay safe. Understand the law. Use your head before you pull the trigger!
Disclaimer/Waiver: Information herein is provided "as is," without warranty of any kind. The author disaffirms any and all responsibility or liability for its accuracy, timeliness, completeness, legality or reliability. Any and all injury, loss, damage, or liability resulting from its use is expressly denied.
Copyright 2024-2025 Bruce Edenson. All rights reserved. Issue Dt. 8/25/25
