The Imminent Use of Unlawful Force

Knowing and understanding your rights just might save your life, and even the lives of others. By enacting Indiana Code 35-41-3-2, the Hoosier State’s General Assembly reaffirmed the long-standing principle that people have a right to defend themselves and third parties from physical harm and crime. The assembly, however, has taken care to formally articulate the boundaries of lawful self defense.

Subsection (c) of Indiana’s self defense statute reads:  

“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;

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. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary“ (emphasis added).

Self Defense: Not as Straightforward as It Sounds

Every self defense case is different, but the thing they all have in common is that each one involves an allegation of a crime of violence. If you’ve been charged with some form of battery, you can assert an affirmative defense by claiming that you were defending yourself or others. Just because you’ve claimed to have acted in self defense, however, this doesn’t mean you’re in the clear. Your attorney will still need to show that when the incident in question occurred, you were: (1) someplace you were allowed to be; (2) acting without fault; and (3) in a reasonable fear of death, serious bodily harm, or the imminent use of unlawful force. When the defendant asserts an especially strong claim of self defense, sometimes the State can be persuaded to dismiss the charges. Other times, the case ends up going to trial.

At trial, a self defense claim is usually presented through eyewitness testimony. If you (the defendant) decide that you want to testify on your own behalf, you’ll be subject to cross-examination by the State. If you and your attorney can successfully establish all three elements of self defense, the burden will shift to the Prosecution, compelling them to disprove your self defense theory beyond a reasonable doubt.

The justification for self defense—that you used reasonable force to protect yourself or another from the imminent use of unlawful force—is not quite as straightforward as it sounds. It has both subjective and objective components, and it can best be understood in the following terms: The subjective question is whether you believed it, and the objective question is whether your belief was reasonable. “[T]he phrase ‘reasonably believes,’ as used in the Indiana self-defense statute, requires both subjective belief that force was necessary to prevent serious bodily injury, and that such actual belief was one that a reasonable person would have under the circumstances.” Littler v. State, 871 N.E.2d 276, 279 (2007). As a result, every self defense claim is a gamble, no matter how candid or forthright you’re being in your account. This is because your subjective belief only covers half of the equation—the objective question must be answered by either the judge or the jury, depending on your type of trial.

Property and Premises

Defense of property is another commonly-used defense to a battery charge. This is most often invoked where an intruder has entered your home or is approaching you while you’re inside your vehicle. If you want to assert that you were acting in defense of premises, you’re going to have to show that you have an interest in those particular premises.

Another important consideration is that a claim of self defense (or defense of property) only excuses a use of force that’s equal to or less than the force with which you were being threatened. Let’s say, for example, someone invades your personal space and slaps your face. If you respond by drawing a gun and shooting your aggressor, that’s excessive. Self defense doesn’t cover excessive, disproportionate actions.

A Duty to Retreat?

There’s no duty to retreat in Indiana. In other words, if someone is threatening you while charging and swinging their fists, you have no legal obligation to withdraw—you can plant your feet and swing right back. If someone’s putting you in danger, the law permits you to stand up for yourself. Again, though, the force that you use must be proportional to the force being threatened. You can’t bring a gun to a fistfight and later claim self defense, because a firearm is so much more powerful than a human hand. You’re not allowed to overreact and get away with it. If you want to be able to claim self defense, the force you use must be no greater than that employed by your aggressor.

When it comes to charges of battery and even murder, self defense is an important angle to consider. If you’ve been charged with a crime as a result of your defense of self, others, or property, you need an experienced criminal defense attorney in your corner.

Real Life Application

Here at the Marc Lopez Law Firm, we’re constantly looking for ways to use a self defense claim to combat battery charges. Attorneys Marc Lopez and Matt Kroes recently tried a case before a jury that turned on self defense and the defense of others.

To briefly summarize the unfortunate facts: The defendant was out with friends when someone approached him aggressively. With the aggressor in his face, the defendant threw and landed a single punch. The aggressor then fell hard, hit his head on the way down, and suffered a traumatic brain injury.

Over the course of a two-day trial, Attorneys Lopez and Kroes advanced the theory that at the time of the altercation, the defendant had been acting in defense of both himself and his friends. They also emphasized that the defendant hadn’t been the instigator and hadn’t thrown more than one punch. On the contrary, he had felt threatened and had done what he thought was necessary to protect himself and others. In the end, the jury was unable to convict, concluding that while the result may have been tragic, the defendant’s actions weren’t criminal.

A self defense claim is all about showing that your conduct was justified under the circumstances. If you’ve earned criminal charges for an act of self defense, give us a call at 317-632-3642.