CAN I “STAND MY GROUND” IN INDIANA?

by James W. McNew May, 2012

The short answer is "Yes", as Indiana is one of about thirty-one states that has legislation addressing this issue. Historically, laws of property protection were known as "Castle" laws, coming from the English common-law wherein every person's home is his or her "Castle". Under English common law, an individual has a right to protect his or her property from harm from another person. The "Stand Your Ground" laws have expanded the "Castle" doctrine to include persons as well as property. The Trayvon Martin case has renewed focus and interest in the "Stand Your Ground" laws.

It has long been recognized that every person has a right to self defense and all states in one form or another recognize this basic principle. Most self defense statutes contain an obligation on the part of the person being threatened to retreat if that is reasonable. However, in the states that have incorporated the "Stand Your Ground" laws, it appears that the requirement to retreat if practical may no longer exist. Some argue that a "Stand Your Ground" defense is a complete bar to prosecution.

Indiana's "Stand Your Ground" law provides, in part, that "[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 "is justified in using deadly force", and does not have "a duty to retreat", if the person "reasonably believes" that deadly force is "necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony." This law makes it clear that "[n]o 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."

The words "reasonably believes" and "reasonable" means that every case of self-defense is going to be fact sensitive, and many times only one person is left to give an account of the events that purportedly occurred. The statutes also contain several exceptions, which muddies the water even more. However, the current Indiana "Stand Your Ground" law, when applicable, appears to make taking another's life legal even if you do not believe you are under the threat of death from the other person. This is why there is so much controversy about the Trayvon Martin case and the "Stand Your Ground" law in Florida. Ultimately if charges are filed in a case it is up to the "fact finders" - the judge or the jury - to decide what really happened and how the law applies to these facts.

The "Stand Your Ground" law was recently applicable in Indianapolis, when the manager of a Kroger grocery store shot and killed an armed robber. The prosecutor decided that no charges would be filed. However, many questioned whether the manager acted appropriately in killing the would-be thief as the question was raised as to whether or not the manager actually felt threatened for his life. These are not easy questions nor are there any easy answers.

As seen in the Trayvon Martin case and many others that are now coming to light, there is a belief that these "Stand Your Ground" laws are nothing more than a license to kill. On the opposite end of the spectrum are those that argue that every person when threatened has a right to protect themselves in whatever manner they deem appropriate. These two positions cannot be reconciled easily and those that have these views are not likely to change them regardless of what the law says they may or may not do.

It would seem prudent and healthy for the national dialogue now taking place be allowed to play itself out. Our legislative leaders should carefully listen to arguments on both sides of this issue and then enact a law or set of laws that would give more guidance to citizens about what self-protection measures can and can't be taken in any given circumstance. The debate currently taking place should be an informed discussion and not just an emotionally reactive expression of opinions in support of a particular position. Only then will a consensus be possible that strikes a balanced approach to the issue of protecting one's self from danger.

This debate will not be resolved soon, and I fully expect to see some states that currently have "Stand Your Ground" laws repeal them, and conversely some states that do not have such laws will elect to enact them - which at the end of the day will leave us with no consistent answers to this vexing problem. While it would be impossible to draft legislation that would cover every conceivable fact situation one might encounter, it is possible for uniformity in the law to be developed and an ongoing effort to educate people as to what one can generally and reasonably do or not do. In the meantime, we will have to see how this plays out not only in Florida but in the rest of the country as well.