Indiana Responsible Gun Owners has a three word slogan: Know, Decide, Act. It means there is a lot to know if you’re going to keep and bear arms responsibly. There are decisions you need to make about being a protector, selecting firearms, choosing ammo, other gear, personal and home defense tactics and strategies, and much more. Then there are actions you need to take. You need to learn, train, practice, and familiarize yourself with potential options to address different scenarios. This includes taking time to understand the law.
To help with that last one, this is part two of attorney Michael Nellinger’s Castle Doctrine series of articles. Part one discussed defense of place. Part two below will discuss defense of property.
As always, this is not to be considered legal advice. The purpose of this article is to help you develop an understanding of the law. Any specific questions you have should be directed to an attorney in your jurisdiction. Thanks for reading.
Jim Anthony – IRGO Founder
My previous Articles regarding the Castle Doctrine and Defense of People 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 involYouved. This Article will explore those distinctions in more detail. And will focus specifically on the third P, Defense of Property.
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 – The second P (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 (revisited)
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.”
Defense of Property – The third P
Defense of Property is the Third P incorporated into the Indiana Statutes, and is described as follows:
Section 2 (e) relating to the protection of Property, reads in pertinent part:
“(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).”
This Section of the statute refers back to Section (c ) for authorization to use deadly force, which requires that the responder “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”.
Unlike the situation regarding Defense of People, in defending Property an individual is again limited to using only “Reasonable Force” based on the circumstances encountered and may only use “Deadly Force” under a specific set of criteria, which refers back to defense of people.
What does that mean under the reality of actual situations is more fully explored in the following example.
Here is our favorite criminal mastermind at it again. If Blackheart is breaking into your truck sitting in your driveway and you are standing there with your favorite home defense weapon in your current possession, your options will not include deadly force. You can use reasonable force necessary to stop the break-in, but unless Blackheart escalates the aggression to include threats to yourself or another person, and he also has the immediate ability to threaten bodily injury or death, then you are limited to non-lethal force only.
Again, as in the previous example, you may not point your firearm at Blackheart unless he is committing a forcible felony (i.e., he is using a weapon of some kind to effect his break-in). Even then, the force you use must be “reasonable under the circumstances”. You may tell him that you have a gun and even show him that it is on your person, but if you draw the weapon and point it at Blackheart prior to his commission of a forcible felony, you are potentiality committing the crime of “pointing a firearm” at a person. Your best option is to call 911, use only reasonable force to stop the breaking and entering of your unoccupied motor vehicle, but avoid putting yourself or others in danger and become a good witness.
Some authorities use the analogy of a “Shark Tank” to describe what actions you should avail yourself of in this situation. If you drop your watch into a Shark Tank, would you dive in after it? Alternatively, if your son or daughter fell into the Tank, you would most certainly dive in to save them. But is risking your life for property the best solution, and if you do, what are the likely consequences.
Now you know what is authorized by the laws of Indiana, so remember to differentiate
between the three P’s when considering when, and under what circumstances, to use your
personal firearm for defense of People, Place or Property.
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;
(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