Stand Your Ground: An Analysis

Earlier this month, Indiana Gov. Mitch Daniels signed into a law a bill that was designed to “remedy” a controversial decision of the Indiana Supreme Court. Without going into too much detail, the issue was whether a homeowner could use force against a police officer to prevent that officer from illegally entering the homeowner’s house. The bill signed into law by Gov. Daniels recognizes that the so-called “castle doctrine” (the right to use force and no obligation to retreat from your home) applies, even if used against police officers.

In all honesty, I didn’t pay too much attention to this particular bill. On one hand, I was offended at the notion of police officers being allowed to conduct an unlawful entry and the homeowner not being able to prevent it. On the other hand, the idea that we would ever condone using force against a police officer just seems wrong. After all, if the entry is unlawful, the homeowner has recourse through the courts against the officer and the municipality for the unlawful entry. That seems a much better resolution that force which, in many instances, is likely to escalate.

But it was the ongoing story of the killing of Trayvon Martin in Florida and the impact of Florida’s so-called “stand your ground” law that caught my attention. Because, and I was not aware of this, Indiana (largely at the behest of the National Rifle Association) passed a very similar “stand your ground” law back in 2006. Now that I’ve looked at that law, I must stay that I’m more than a bit scared of its real-world implications. But first, let’s look at the actual text of the law. (Text in bold was added in 2012; text in strikeout was deleted in 2012; I hope the formatting works as expected…)

Be it enacted by the General Assembly of the State of Indiana:

SECTION 1. IC 35-41-3-2, AS AMENDED BY P.L.189-2006, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 2. (a) In enacting this section, the general assembly finds and declares that it is the policy of this state to recognize the unique character of a citizen’s home and to ensure that a citizen feels secure in his or her own home against unlawful intrusion by another individual or a public servant. By reaffirming the long standing right of a citizen to protect his or her home against unlawful intrusion, however, the general assembly does not intend to diminish in any way the other robust self defense rights that citizens of this state have always enjoyed. Accordingly, the general assembly also finds and declares that it is the policy of this state that people have a right to defend themselves and third parties from physical harm and crime. The purpose of this section is to provide the citizens of this state with a lawful means of carrying out this policy.

(b) As used in this section, “public servant” means a person described in IC 35-41-1-17, IC 35-31.5-2-129, or IC 35-31.5-2-185.

(c) A person is justified in using reasonable force against another 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. 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.

(b) (d) A person:

(1) is justified in using reasonable force, including deadly force, against another 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.

(c) (e) With respect to property other than a dwelling, curtilage, or an occupied motor vehicle, a person is justified in using reasonable force against another any other person if the person reasonably believes that the force is necessary to immediately prevent or terminate the other person’s trespass on or criminal interference with property lawfully in the person’s possession, lawfully in possession of a member of the person’s immediate family, or belonging to a person whose property the person has authority to protect. However, a person:

(1) is justified in using deadly force; and

(2) does not have a duty to retreat;

only if that force is justified under subsection (a). (c).

(d) (f) A person is justified in using reasonable force, including deadly force, against another any other person and does not have a duty to retreat if the person reasonably believes that the force is necessary to prevent or stop the other person from hijacking, attempting to hijack, or otherwise seizing or attempting to seize unlawful control of an aircraft in flight. For purposes of this subsection, an aircraft is considered to be in flight while the aircraft is:

(1) on the ground in Indiana:

(A) after the doors of the aircraft are closed for takeoff; and

(B) until the aircraft takes off;

(2) in the airspace above Indiana; or

(3) on the ground in Indiana:

(A) after the aircraft lands; and

(B) before the doors of the aircraft are opened after landing.

(e) (g) Notwithstanding subsections (a), (b) and (c), (c) through (e), a person is not justified in using force if:

(1) the person is committing or is escaping after the commission of a crime;

(2) the person provokes unlawful action by another person with intent to cause bodily injury to the other person; or

(3) the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.

(f) (h) Notwithstanding subsection (d), (f), a person is not justified in using force if the person:

(1) is committing, or is escaping after the commission of, a crime;

(2) provokes unlawful action by another person, with intent to cause bodily injury to the other person; or

(3) continues to combat another person after the other person withdraws from the encounter and communicates the other person’s intent to stop hijacking, attempting to hijack, or otherwise seizing or attempting to seize unlawful control of an aircraft in flight.

(i) A person is justified in using reasonable force against a public servant if the person reasonably believes the force is necessary to:

(1) protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force;

(2) prevent or terminate the public servant’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle; or

(3) prevent or terminate the public servant’s unlawful trespass on or criminal interference with property lawfully in the person’s possession, lawfully in possession of a member of the person’s immediate family, or belonging to a person whose property the person has authority to protect.

(j) Notwithstanding subsection (i), a person is not justified in using force against a public servant if:

(1) the person is committing or is escaping after the commission of a crime;

(2) the person provokes action by the public servant with intent to cause bodily injury to the public servant;

(3) the person has entered into combat with the public servant or is the initial aggressor, unless the person withdraws from the encounter and communicates to the public servant the intent to do so and the public servant nevertheless continues or threatens to continue unlawful action; or

(4) the person reasonably believes the public servant is:

(A) acting lawfully; or

(B) engaged in the lawful execution of the public servant’s official duties.

(k) A person is not justified in using deadly force against a public servant whom the person knows or reasonably should know is a public servant unless:

(1) the person reasonably believes that the public servant is:

(A) acting unlawfully; or

(B) not engaged in the execution of the public servant’s official duties; and

(2) the force is reasonably necessary to prevent serious bodily injury to the person or a third person.

SECTION 2. An emergency is declared for this act.

Yeah, I know, I know. For the non-lawyers out there, that’s quite a mouthful. But, as I mentioned before, it’s not the castle doctrine that I want to focus on, but rather, the stand your ground component of the law. Let me reprint the most relevant portion (and I’ve highlighted the section I want to discuss):

(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. 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.

Go ahead. Read it again. I’ll wait.

Done? OK.

Now, with that law fresh in your mind, I want you to think about the following scenarios and, in each case, decide whether you have the right to shoot to kill.

• You see a little old lady being robbed on the street. Her attacked is grabbing her purse and pushing her down toward the ground. You believe that the only way to stop the robber from getting away with her purse is to shoot him.
• You see two boys engaging in a fist fight and you notice that one of them has a knife in his pants pocket.
• You see an adult yelling at a child and hitting that child in the parking lot of a shopping mall. The adult is not hitting the child’s face, but is doing more than spanking the child’s butt.
• You are walking through an alley and you see several rough looking men. You think that you hear them call you a mark.
• You are a woman and your husband decides that he wants to have sex, even after you’ve said no. He pushes you onto the bed and starts to lower his pants.
• As you are pulling up your driveway after a night out, you see someone trying to jimmy open your garage door.
• You hear a sound and walk out to the patio of your lake house and see someone pulling away from the dock in your motorboat. (You may want to look at Section (e), too.)
• You get into an argument with someone at a bar (you looked at his girlfriend the wrong way) and he yells, “I’m gonna kill you!”

Now I’m certainly not an expert in criminal law. But it seems to me that in each of the examples that I’ve given, a legitimate (though not necessarily winning) argument could be made that you have the statutory authority to use deadly force. And note that only three of these eight cases involve actual self-defense and several don’t involve likelihood of personal injury at all.

I think that we all need to be able to defend ourselves. And we shouldn’t get in trouble for trying to help someone else. But I do worry about the statutory authorization to use force — including deadly force — in some of these sorts of situation. Yes, we want to protect innocent people from being hurt; but what risk of unintended consequences or death or serious injury caused by mistake are we willing to accept?

One further point that I want to note, and some have apparently suggested that this is a point that was directly at issue in the Travyon Martin/George Zimmerman matter:

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.

Of course, the real question is what means were necessary. But I’d certainly argue that if you were to use force in any of the instances set forth above, that you would certainly have a decent argument that your use of force was a reasonable means. And so, here’s the proverbial rub. If you are arrested or brought to trial, you are placed in legal jeopardy. Note that the statute doesn’t say that the circumstances surrounding your use of force are a defense to or justification for the use of that force, but that you can’t be placed in legal jeopardy. Think of it this way: Absent this law, if you were to shoot and kill the men in that dark alley that you worried were about to assault or rob you and the state decided to prosecute you for murder (or manslaughter or whatever), your defense would be self-defense and it would up to a jury (I think…) to decide if your use of force was justified and, with that in mind, whether your conduct was criminal. But with the stand your ground legislation, the question most likely could never get to a jury because that would mean that you had already been placed in legal jeopardy. I suppose that, so long as you can articulate any sort of reasonable basis for your use of force, then the police and prosecutors would be hamstrung and unable to arrest or prosecute you. And query whether that is any different if they don’t believe you.

I think that these stand your ground laws have enormous potential for very bad unintended consequences. And, while I’m not suggesting that self-defense or the prevention of a forcible crime not be legitimate defenses, I think that I’d be more comfortable if the analysis of whether a person acted properly was conducted by a jury with all of the facts rather than in a split-second decision or by a police officer confronted by a “reasonable” explanation. Let’s allow the legal system work rather than trying to pre-judge certain outcomes.