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Hoosiers Aren’t Required to Be Victims

Attorneys Marc Lopez and Zac Bailey recently discussed self defense claims in Indiana, including how they can be justified, when deadly force is acceptable, and why it’s probably a bad idea to escalate a conflict. What follows is a lightly edited transcript of their conversation.

Marc Lopez
Today we’re going to talk about self-defense. Every day, we see news stories or movies where people are defending themselves—shooting each other, punching each other, whatever. 

Zac, give us Indiana’s framework for self-defense. When is a person justified in using it? When did they go too far? Give us some common scenarios.

Zac Bailey
Sure, and there are a couple common scenarios that we see. The first one is defending yourself or defending another person. Say we’re out in public, and for whatever reason, there’s an attack. You’re allowed to fight back. You don’t have to just take it. You don’t have to try and run away. You’re allowed to fight back. 

It becomes a little bit murkier when you use deadly force. If somebody’s beating you up, and you pull a gun—it’s a little bit different. At that point, you have to show that there was a reasonable fear of serious bodily injury occurring to you or another person. And we’re not talking reasonable according to you—the question is whether a jury would agree it was reasonable. So an outsider would have to look in and say, You know what? That makes sense.

Marc Lopez
Zac’s saying the self defense has to be subjectively reasonable—you had to actually believe it was necessary to use deadly force—as well as objectively reasonable in the eyes of the jury.

You made an interesting statement about being allowed to fight back. Do you actually have to be hit first in order to claim self-defense?

Zac Bailey
No. If I think that you or someone else is in danger—and it applies to other people, as well—I can protect you in public.

Marc Lopez
And I appreciate it.

Zac Bailey
You’re allowed to be proactive in your self-defense.

Marc Lopez
So how about this scenario? I’m in my house, and somebody’s breaking in. What kind of force am I allowed to use?

Zac Bailey
If you’re defending your home, that lowers the standard required to justify deadly force. All you have to show is that force was necessary to stop the intrusion. 

So if someone’s breaking into my house, and I see them coming in, I can use deadly force to stop that intrusion. I’m legally allowed to fire a gun at them.

Marc Lopez
Same scenario: A person breaks in, but they see you coming down the stairs with a gun. The intruder runs out the front door, and they’re fleeing down the block. 

What kind of force are you allowed to use?

Zac Bailey
At that point? You’re not allowed to use deadly force anymore. The risk to your house and property is gone at that point. Once the risk is gone, you can’t use the deadly force to stop it.

Marc Lopez
Different scenario: You’re in your front yard, and you see a stranger hop into your automobile and drive off. 

What kind of force are you allowed to use to stop that person from driving away?

Zac Bailey
You’re not allowed to use deadly force there, either.

Marc Lopez
Okay.

Zac Bailey
If you were in the car—yes, you’re allowed to use deadly force to protect yourself. But if the thief gets in your car and pulls away, there’s no risk of losing your life, so you’re not allowed to use the deadly force in order to protect you.

Marc Lopez
Every year, we see tragic cases where people believe they’re exercising their rights properly, but they’re not. If somebody is leaving or retreating, and you shoot and kill them, you can be charged with murder. Please think before you use any kind of deadly force. 

And Zac—we’re talking a lot about shooting, but that’s not the only kind of deadly force.

Zac Bailey
No, I could pull a sword on you.

Marc Lopez
Zac and I did a trial where somebody was whacking weeds and ended up getting into an altercation. The prosecutor was trying to find ways to argue that a weed whacker is a deadly weapon—that any aggressive act that’s capable of killing another person should be considered deadly force. Be super careful with things like that. 

What are the limitations on self-defense?

Zac Bailey
Self-defense begins and ends with necessity. As long as you need to defend yourself, you can rely on self defense. 

Like we talked about before, though, when a person’s running away—there’s no necessity there. If someone’s running down the street, I’m not allowed to chase them down and call it self defense. I can’t escalate the situation. 

I also need to be in a place that I’m allowed to be. A person who isn’t where they’re allowed to be can’t claim self defense. 

Marc Lopez
So you can’t break into somebody’s house and then kill the owners when they try to kick you out? That’s no good?

Zac Bailey
No, and that’s another issue that people run into. If you started it, you’re not usually going to be able to claim self defense.

Marc Lopez
Exactly. If you were provoking or antagonizing the other party, self defense claims can get very murky. 

We already mentioned this, but in order to claim self-defense, you have to have a reasonable belief that you’re about to be on the receiving end of unlawful force. 

Is it possible for self-defense to go overboard?

Zac Bailey
Absolutely. Like we talked about—if somebody’s running away, and you’re chasing them after they’re no longer a threat to you—that’s not self defense.

Marc Lopez
We’ve also heard of cases where somebody breaks in, and the resident just unloads round after round after round in them. Once the person’s no longer a threat, and you continue to beat them or shoot them, you’re no longer acting in self-defense. 

Again, if this person dies, you’ll likely be charged with murder. Yes, there might be mitigators, but murder’s a serious charge. 

Self defense is fact-specific. It’s situation-specific. If you think self defense is a defense to your criminal charge, it’s important to get an attorney on board as soon as possible. There are deadlines for filing the notice of self defense, and if there are witnesses, their statements have to be gathered as soon as possible. 

We’ve done so many cases where potentially helpful witnesses get lost, change their stories, or simply stop cooperating. You have to lock down as much of this stuff as possible in order to preserve that claim and effectively present it to a jury.

Zac Bailey
It’s also super important when you’re talking to the police, early on. They already know you committed this act—whether or not you were justified will be sorted out as the process goes along. You want representation during that process.

Marc Lopez
Absolutely. Any parting thoughts?

Zac Bailey
Just to always plead the Fifth.

Marc Lopez
Always plead the Fifth!