Have you ever heard somebody say, “As long as somebody’s in my house I have a right to shoot them.” Or have you heard this? “If I shoot somebody on the front porch I just need to drag them inside my house.”
As your friend-in-firearms, please take the following advice. Remove these notions from your brain! Self-defense law is far more nuanced than these aphorisms. If you think like this you can get yourself in serious trouble.
You may have a right to bear arms. But you have a duty to understand the law, to train, and to have a plan to protect yourself and your loved ones. If you ever have to defend yourself in court after defending yourself on the street, it will serve you well to have spent plenty of time learning what you can and can’t, or should and shouldn’t do with a firearm.
Attorney Michael Nellinger has produced a series of articles to help us defend our homes. As always, this is to help you with legal awareness and is not to be considered specific legal advice. But anybody who owns or carries a firearm needs to be well-versed in state and federal law.
Stay sharp and stay safe,
Jim Anthony – IRGO Founder
My previous Article regarding the Castle Doctrine touched upon the three P’s that quantify what level of force would be considered reasonable under specific circumstances. The determination of what “level of force” is reasonable depends upon which of the three P’s are involved. This Article will explore those distinctions in more detail.
Indiana Law and It’s Interpretation Regarding the Three P’s
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 typical situations where the use of force, including deadly force, are spelled out. Those three situations are (1) Defense of Self or Others (People), (2) Defense of Place (Place), and (3) Defense of Property (Property). Situation (2),
Defense of Place, offers the minimum threshold for the use of deadly force, and is what we focused on in this prior Article as the “Castle Doctrine”.
Other sections of this Indiana Statute will be left for future discussion, such as the use of force necessary to prevent an airplane hijacking, against a public servant, when reasonable and deadly force are specifically not authorized, etc.
Defense of Place (revisited)
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 other 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.
In that Article we used several examples of situations and discussed how they might be viewed by law enforcement based on the circumstances used in the examples. If you are interested in reviewing those examples, please re-read that Article.
Defense of People – The first P
Defense of People is the First P incorporated into the Indiana Statutes, and is described as follows:
IC 35-41-3-2 – Use of Force to Protect Person or Property
Section 2 (c) relating to the protection of People, reads in pertinent part:
“(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.”
Unlike the situation regarding Defense of Place (Castle Doctrine), in defending people an individual is limited to using only “Reasonable Force” based on the circumstances encountered and may only use “Deadly Force” under a specific set of criteria.
Those criteria for authorizing the use of deadly force are that the defender reasonably believes that deadly force is necessary to prevent “serious bodily injury or death” of himself/herself or a third person, or that level of force is necessary to defend against a forcible felony.
What does that mean under the reality of actual situations is more fully explored in the following example.
Let’s assume Blackheart is attacking a person in your neighborhood as you are on your morning walk, and you happen to be carrying your personal firearm, for which you have a valid LTCH permit. Blackheart has no weapon but is using his hands to slap your neighbor, who is screaming for assistance. What level of force are you allowed to use and what action should you take? Under a strict interpretation of the applicable statutory provision, you may only use “reasonable force under the circumstances” and not deadly force. Can you point your firearm and loudly request that Blackheart immediately stop slapping your neighbor? Not without potential legal consequences for the crime of “pointing a firearm”. That would only be a misdemeanor if your firearm was unloaded, but do you walk around with an unloaded weapon? You would be allowed to use a reasonable level of force to stop the altercation, but unless and until you reasonably believe your neighbor’s life is in danger, deadly force is not an option. You
would be within your rights to physically restrain the aggressor and you could also explain to Blackheart that you are armed, even going so far as to let him see your weapon in your waistband, but you cannot brandish your weapon unless or until Blackheart picks up a weapon (rock, stick, metal pipe, etc.) and threatens either you or your neighbor. At that point, if you reasonably believe that lives are in danger, then you may draw your weapon and command that he drop his weapon.
Now let’s assume that you are on your walk the following day and you see two individuals grappling for control of what appears to be a handgun. One of the individuals is wearing dirty, unwashed clothes and has the look of a vagrant, and the other is wearing nicely pressed blue jeans and a collared shirt and looks quite respectable. The vagrant appears to be winning the scuffle to get control of the firearm. What can or should you do under the circumstances described? Clearly you do not have enough information to make an informed decision about how to proceed, so you should call 911 and become a good witness for the officers when they arrive, but you should do nothing to intervene. You do not know who may have been the aggressor, if either or neither were “innocent parties”, or even if one or the other happens to be law enforcement.
Add the following fact that the vagrant yells to you to call 911 because he claims he is being assaulted. Can you now intervene and use your weapon to prevent serious bodily injury or death to the vagrant? Again, you do not have enough information, so call 911 and become a good witness (while seeking cover, of course).
Now let’s change the facts and assume you see your neighbor, Stanley, involved in a similar situation to that described above (i.e., he is struggling to gain possession of a handgun from the vagrant looking individual and it appears that the vagrant is winning the struggle). Should you
pull your weapon and come to his aid? Not unless you have sufficient details to understand who was the initial aggressor and whether or not Stanley is an innocent party in this situation. Again, call 911 and become a good witness. However, if you observed the vagrant sneak up on Stanley and assault him asking for his money, and you observe Stanley attempt to resist, resulting in the struggle for the weapon, now you have the authority to use not only reasonable, but deadly force to prevent Stanley from serious bodily injury or death. Pull your weapon and cover the perpetrator until the police arrive, or if necessary, and you have a clear opportunity, shoot the aggressor.
We will explore the third P, Property, and the use of force related to that subset of situations, in
the next installment on this topic.
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 injuryto 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 otherperson; 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.
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