This is the first of a 3 part series on the personal defense of 1. place, 2. property, 3. people. Today, we’ll start with the defense of a place – Your home. Please see the disclaimer in the footer of each page of this site. This is for your general awareness only and is not legal advice. Any specific legal questions should be directed to your attorney. Thanks for reading. Jim Anthony – IRGO Founder.
Origins of “The Castle Doctrine”
The Castle Doctrine (also known as Castle Laws, and Defense of Habitat Laws) are state personal defense laws that offer citizens in their dwellings, and in some states, cars or workplaces, the right to protect themselves, other people, and their property by force with lower requirements for justification. These laws have been around for a long time — literally since the time of castles. Originally as a part of English Common Law, it continued as an accepted legal precedent after America won its independence from Great Britain.
“For a man’s home is his castle, and each man’s home is his safest refuge.”—Sir Edward Coke, English Jurist, The Institutes of the Laws of England, 1628
This concept is also exhibited in the Fourth Amendment to the U.S. Constitution:
“The right of the people to be secure in their persons, houses, papers and effects shall not be violated, and no Warrants shall issue but upon probable cause…”
Individual States Adoption of Statutory Castle Doctrine
Castle Doctrine first appeared as codified into state and local laws in 1985 in the once conservative state of Colorado. Colorado’s law shielded people from criminal and civil liability for using any force against a home invader. This law — and similar laws passed in many states
— countered the legal concept of duty to retreat.
The duty to retreat means that if someone breaks into your home, you must withdraw to the farthest point possible from the intruder before you can consider deadly force. For example, under duty to retreat, you cannot confront an intruder at the point of entry — not even to prevent access to the interior of your home and the rest of your family. Castle Doctrine has replaced duty to retreat in nearly every state.
Today, “stand your ground” laws expand upon Castle Doctrine to include defending yourself in public. So-called “stand your ground” eliminates duty-to-retreat requirements from criminal attacks in public, allowing you to use deadly force when necessary.
State-by-state positions in the United States Image
Indiana Law and It’s Interpretation
The State of Indiana has both a Castle Law and a “Stand Your Ground” variation.
In order to better understand the applicability of this set of laws in Indiana, we need to take a closer look at some of the pertinent paragraphs embodied in the Indiana Statutes.
There are basically three (3) different definitions of situations where the use of force, including deadly force, are spelled out. Those three situations are (1) Defense of Self or Others, (2) Defense of Place, and (3) Defense of Property. Situation (2), Defense of Place, offers the
minimum threshold for the use of deadly force, and is what we will be focusing on in this discussion.
These laws can be viewed in full below, but we will focus on a specific section only, namely:
Indiana Statute IC 35-41-3-2, Subparagraph (d) defines in what circumstances a person may use deadly force when protecting their “Castle” (i.e., Defense of Place). This section of the statute applies only to limited locations (dwelling, occupied motor vehicle, curtilage) and the
use of deadly force is limited to only a specific set of circumstances. Note: Curtilage is the immediate, enclosed area surrounding a house or dwelling.
Referring to my prior Article regarding “The Use of Force Continuum”, the use of deadly force is severely restricted in most circumstances, “Deadly force may only be used when there is an immediate, and unavoidable danger of death or great/grave bodily harm to an innocent person, where no other option exists other than the use of deadly force.”
The Castle Doctrine, as codified into Indiana Law, modifies that definition when the confrontation involves a person’s dwelling, occupied motor vehicle or curtilage, to the following:
“a person is justified in using reasonable force, including deadly force, against another person and 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.”
Once the “unlawful entry or attack” is broken off, the use of deadly force is no longer authorized and only “reasonable force under the circumstances” would be allowed.
For example, if Blackheart breaks into your home by breaching the doorway with several hard kicks to the door, which breaks the door’s threshold splintering the door frame, and you are standing there with your favorite home defense weapon, you have several choices. Under Indiana’s Castle Doctrine and Stand Your Ground statutes, you are now justified in using deadly force to stop or terminate the invasion.
Let’s assume Blackheart sees your weapon and raises his hands before you can shoot and says, “my mistake, I broke into the wrong house. I am leaving now.”, at which point he turns and departs your dwelling. Are you justified in shooting him at that point? Under a strict interpretation of the applicable statutory provision, once the unlawful entry has been terminated you may only resort to “reasonable force under the circumstances” and not deadly force. You may be allowed to use your weapon to force Blackheart to stop and retain him until the police arrive, but if you shoot him you will likely be charged and prosecuted (assuming the facts become known to the police or prosecutor). Those cameras you have installed as your security system can now be used against your argument that Blackheart was pressing the attack.
Another frequently cited set of circumstances involves the situation where Blackheart is in your unfenced yard and breaks your window, which in your view is in preparation to enter, but never actually manages to climb through the window before you shoot him to break off the unlawful entry. Should you (a) put a round in his head to make sure he will not bring an action against you later, (b) shoot him and drag his body back inside your dwelling to verify your story that he was breaking into your dwelling and you had no alternative but to use deadly force, or (c) command him to leave immediately and show him you are armed and dangerous and prepared to shoot him should he continue his attempted breach? Options (a) and (c) are both viable options, but (b) is likely to get you prosecuted for tampering with evidence and attempted or actual manslaughter. The question you should consider at the point where you are making the decision about (a) versus (c) is, what will be the aftermath of each of those decisions.
Under (a), you are perfectly within your rights to shoot the intruder under the rules set out in the statute, but almost certainly you will be taken into custody for questioning and your firearm will be confiscated for testing to verify your version of events. What happens after that will depend on witness testimony (if there is any), the evidence at the scene (your camera footage perhaps), and the attitude of the officers and the prosecutor regarding your story. This will not be a black and white determination. In addition, the round to the head to avoid future civil liability has been much more reasonably dealt with in Indiana through the recent passage of a new “Civil Immunity” statute that precludes a perpetrator from bringing a civil lawsuit against an individual that has availed themselves of the use of force as allowed under the statutes.
Under (c), once the officers arrive and take Blackheart into custody, you will probably have to answer some questions, get a pat on the back, and after boarding up your broken window, you can go back to bed.
So a preliminary question you need to pose to yourself in advance of any such confrontation would be, was my life, or the life of my family, really in immediate danger of serious bodily injury or death, and if that answer is yes, then by all means, end the threat with deadly force, but be prepared for the aftermath.
Regarding option (b) above, where it is frequently cited that a person should drag the body back inside the house, you should be warned that such an action could result in much more serious charges against you. This argument arose from uninformed individuals attempting to interpret other States’ laws (not Indiana) that are more ambiguous than the Indiana statutes. Even in those states where the options are not as clear cut, no one should ever tamper with crime scene evidence, unless you want to gamble with your freedom.
Indiana Statutes on Use of Force to Protect Person, Place or Property
IC 35-41-3-1, Legal authority
Sec. 1. A person is justified in engaging in conduct otherwise prohibited if he has legal authority
to do so.
IC 35-41-3-2, Use of force to protect person or property
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 35-31.5-2-129 or IC 35-31.5-2-185.
(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.
(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.
(e) With respect to property other than a dwelling, curtilage, or an occupied motor vehicle, a person is justified in using reasonable force against 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 (c).
(f) A person is justified in using reasonable force, including deadly force, against 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.
(g) Notwithstanding subsections (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.
(h) Notwithstanding subsection (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;
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.
Firearms Training Background:
Indiana and Federal Gun Law Training and 2nd Amendment Attorney
United States Concealed Carry Association (USCCA) Certified Instructor
USCCA Elite Member since 2013
NRA Patriot Life Endowment Member
Four-Day Defensive Handgun at Front Sight Firearms Training Institute
NRA Basic Pistol (2)
NRA Personal Protection
NRA Defensive Rifle
NRA Defensive Shotgun
Ammunition Reloading – Beginner & Advanced
CCW Permits for Indiana (Lifetime), Florida, and Utah
FBI Citizens Academy Alumnus
Former Federal Firearms License Holder
Community Emergency Response Team (CERT) Alumnus
Indianapolis Department of Public Safety Citizens Academy Alumnus
Indy CERT Alumni Association Treasurer 2015 through 2016
Amateur Radio Emergency Service (ARES) member since 2014
Amateur Extra Class Amateur Radio License (KC9YBH)
Educational background:
B.S. in Business and Accounting at Indiana University
J.D. in Law at Indiana University Indianapolis
MBA from Kelly School of Business at Indiana University Bloomington
Mr. Nellinger resides in Indianapolis, Indiana. His hobbies are golf, fishing, spectator
sports, amateur radio and vacation travel with his wife Jan. He retired from Rolls-Royce
Corporation in April 2013 after 40 years of service. He is also an active volunteer with
Indy Community Emergency Response Team, Marion County Amateur Radio
Emergency Service, and the Salvation Army. Mr. Nellinger is 70 years old.
- New Indiana Legislation – Constitutional Carry – What Does It Mean? - January 14, 2022
- Alec Baldwin Shooting – What Went Wrong? - October 26, 2021
- The Castle Doctrine and the Three P’s – People, Place and Property – Part 2 - September 29, 2021