Each of our 50 states allows self-defense, but what does the law look like in Indiana? Attorneys Marc Lopez and Zac Bailey discuss the basics of self-defense law—when you can claim it and when you can’t. What follows is a lightly edited transcript of their conversation.
Marc Lopez
Every day we see stories that involve people defending themselves. What’s Indiana’s framework for self-defense?
Zac Bailey
There are a couple common scenarios. The first one is defending yourself or defending another person.
Say we’re out in public, and someone attacks you. You’re allowed to fight back. You don’t have to just take it or try to run away.
It becomes a little bit murkier when you use deadly force. If somebody’s beating you up, and you pull a gun—that’s different. At that point, you have to show that there was a reasonable fear of serious bodily injury to you or another person who was being attacked.
And this isn’t simply reasonable according to you. A jury would have to agree that your actions were reasonable. An outsider would have to be able to look in and say, You know what? That makes sense.
Marc Lopez
That’s what we call subjectively and objectively reasonable. You had to actually believe that you had to use deadly force, and a jury looking at the situation objectively would have to believe that deadly force was required as well.
You said earlier that you’re allowed to fight back. Do you actually have to be hit first in order to claim self-defense?
Zac Bailey
No. If you think that you or someone else is in danger, you can act first in order to protect them. I could protect you in public.
Marc Lopez
And I appreciate it.
Zac Bailey
You’re allowed to be proactive in your self-defense.
Marc Lopez
Let’s say I’m in my house, and somebody’s breaking in. What kind of force am I allowed to use?
Zac Bailey
If you’re protecting your home, there’s a lower threshold for justifying deadly force. All you have to show is that that force was necessary to stop the intrusion.
So if you’re breaking in to my house, and I see you coming in, I’m legally allowed to fire a gun at you.
Marc Lopez
Okay, same scenario. There’s a person breaking into your house, and they see you coming down the stairs with a gun. They run out the front door and down the block. What kind of force are you allowed to use?
Zac Bailey
If the person is fleeing? You’re not allowed to use deadly force. You can’t claim that deadly force was necessary to keep the person from entering your property when they’re already running away from your property. By that point, the risk is over.
Marc Lopez
Different scenario. You’re in your front yard, and you see someone hop into your car, and they start to drive it away. What kind of force are you allowed to use?
Zac Bailey
If you were inside the car, you’d be allowed to use deadly force to keep an intruder out. But if the person just hops in your car and drives off? There’s no physical risk involved. You can’t use deadly force to protect property.
Marc Lopez
Every year we see tragic cases where people believe that they’re properly exercising their self-defense rights, and they are mistaken. If somebody is leaving or retreating, don’t shoot at them. If the person dies, you will likely be charged with murder.
We’ve been talking about guns, but that’s not the only kind of deadly force.
Zac Bailey
No, I could pull a sword on you.
Marc Lopez
In fact, we did a trial where somebody was using a weed whacker, and the prosecutor was trying to find ways to argue that the weed whacker was a deadly weapon. And if it’s a deadly weapon? Then directing it at someone else could be deadly force. Be careful with things like that.
What are the limitations on self-defense claims?
Zac Bailey
Self-defense begins and ends with necessity. As long as you need to defend yourself, you can continue using self-defense. But as we mentioned before, when the other person’s running away, there’s no necessity there.
Another important point is that to claim self-defense, you need to have been in a place that you were allowed to be. You can’t claim self-defense if you had no right to be where you were.
Marc Lopez
When can self-defense go overboard?
Zac Bailey
As we’ve said, if somebody’s running away, you can’t chase them down and call it self-defense. You can’t shoot them in the back.
Marc Lopez
You also have to keep proportionality in mind. If someone breaks into your house, you’re allowed to shoot them until they’re no longer a threat. But if you keep shooting them while they’re lying on the ground? That doesn’t look like self-defense.
Self-defense claims are always fact-specific. If you think self-defense is an answer to your criminal charge, it’s important to get an experienced defense attorney on board as soon as possible.
There are deadlines for filing a notice of self-defense—as well as a number of other things—but even more importantly, witnesses need to be interviewed and deposed. The longer you wait to talk to people, the more the facts can change. You have to lock down the details so you can present your claim to a jury.
Zac Bailey
You also want to consult with a lawyer before talking to the police.
Marc Lopez
Absolutely—always plead the 5th!