Self-Defense

When a person is not justified in using force to defend persons or property: Examples of claims of self-defense by an initial aggressor or mutual combatant

Against a public servant: Statutory text

Against a public servant: General interpretations of the statutory text

Against a public servant: Definitions and interpretations of “public servant”

Against a public servant: Interpretations of “unlawful entry”

Against a public servant: When a person is not justified in using deadly force against a public servant

Admissibility of evidence

In general

• Self-defense is a legal justification for what would otherwise be a criminal act.

Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011), trans. denied(citing Brown v. State, 738 N.E.2d 271, 273 (Ind. 2000))

See Cole v. State, 28 N.E.3d 1126, 1137 (Ind. Ct. App. 2015)(citing Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011))(“A valid claim of self-defense is legal justification for an otherwise criminal act.”)

See also Chambliss v. State, 746 N.E.2d 73, 79 (Ind. 2001)(quoting Miller v. State, 720 N.E.2d 696, 699 (Ind. 1999))(“‘Self-defense is recognized as a valid justification for an otherwise criminal act.’”)

See also Nuss v. State, 328 N.E.2d 747, 751 (Ind. Ct. App. 1975)(citing Jennings v. State, 318 N.E.2d 358, 359 (Ind. 1974), reh’g denied)(“[A] meritoriously asserted claim of self defense will be a legal justification of an otherwise criminal act.”)

Purpose

• [T]he 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 [IC 35-41-3-2] is to provide the citizens of this state with a lawful means of carrying out this policy.

IC 35-41-3-2(a)(emphasis added)

• The purpose of the self-defense statute itself is to provide a complete legal defense for acts taken by an initial victim, who becomes the ultimate defendant, against an initial aggressor, who becomes the ultimate victim.

Reinbold v. State, 555 N.E.2d 463, 468 (Ind. 1990), overruled on other grounds by Wright v. State, 658 N.E.2d 563, 570 (Ind. 1995)

• In a figurative sense, the right of self-defence is a shield. Its purpose is to shield and protect one’s person from death or great bodily harm. In its exercise, the assailant may be killed, yet the killing is to shield and protect one’s own person.

Barnett v. State, 100 Ind. 171, 176 (Ind. 1885)

Affirmative defense

• Self-defense is an affirmative defense.

Lacey v. State, 670 N.E.2d 1299, 1303 (Ind. Ct. App. 1996)

See Hoskins v. State, 563 N.E.2d 571, 576 (Ind. 1990)(“The legislature has also created true affirmative defenses, such as entrapment or self-defense, which consist of elements which interdict criminal penalty for acts which would otherwise be punishable.”)

Elements

• To prevail on a claim of self defense, the defendant must present evidence that he: (1) was in a place he had a right to be; (2) did not provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear of death or great bodily harm.

Bryant v. State, 984 N.E.2d 240, 250 (Ind. Ct. App. 2013), trans. denied(citing Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011), trans. denied)

See Chambliss v. State, 746 N.E.2d 73, 80 (Ind. 2001)(“Self defense is established if a defendant (1) was in a place where the defendant had a right to be; (2) did not provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear of death or great bodily harm.”)

See also Lacey v. State, 670 N.E.2d 1299, 1303 (Ind. Ct. App. 1996)(quoting Dean v. State, 432 N.E.2d 40, 42 (Ind. 1982), reh’g denied)(“‘It is well settled in Indiana that to prevail on a claim of self-defense, the defendant must have been in a place where he had a right to be, acted without fault, and acted in reasonable fear or apprehension of death or great bodily harm.’”)

Overcoming the defense

• Once a defendant claims self-defense, the State bears the burden of disproving at least one of these elements beyond a reasonable doubt for the defendant’s claim to fail.

Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999)(citing Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999))

See Cole v. State, 28 N.E.3d 1126, 1137 (Ind. Ct. App. 2015)(quoting Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002))(“‘When a claim of self-defense is raised and finds support in the evidence, the State has the burden of negating at least one of the necessary elements.’”)

• The State may meet this burden by rebutting the defense directly, by affirmatively showing the defendant did not act in self-defense, or by simply relying upon the sufficiency of its evidence in chief.

Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999)(citing Lilly v. State, 506 N.E.2d 23, 24 (Ind. 1987))

Cole v. State, 28 N.E.3d 1126, 1137 (Ind. Ct. App. 2015)(quoting Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999))

See Simpson v. State, 915 N.E.2d 511, 514 (Ind. Ct. App. 2009), trans. denied(quoting Ballard v. State, 808 N.E.2d 729, 732 (Ind. Ct. App. 2004), aff’d in relevant part, 812 N.E.2d 789 (Ind. 2004))(“‘The State may meet its burden by either rebutting the defense directly or relying on the sufficiency of evidence in its case-in-chief.’”)

Cf. Martin v. State, 512 N.E.2d 850, 851-52 (Ind. 1987)(citing Shutt v. State, 367 N.E.2d 1376, 1385 (Ind. 1977))(“Among the ways this burden can be met is to present evidence sufficient to convince a reasonable juror beyond a reasonable doubt that the defendant, in light of all the circumstances known to him, could not have entertained a bona fide belief he was in danger of death or great bodily harm.”)

Determining whether the defendant has prevailed on a claim of self-defense

• The decision whether a claim of self-defense has been disproved is entrusted to the factfinder.

Pointer v. State, 585 N.E.2d 33, 36 (Ind. Ct. App. 1992)(citing Almodovar v. State, 464 N.E.2d 906, 909 (Ind. 1984))

See Cole v. State, 28 N.E.3d 1126, 1137 (Ind. Ct. App. 2015)(citing Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999))(“Whether the State has met its burden is a question of fact for the fact-finder.”)

See also Birdsong v. State, 685 N.E.2d 42, 45 (Ind. 1997)(citing Crisler v. State, 509 N.E.2d 822, 823 (Ind. 1987))(“The determination of whether the State has met this burden is a question of fact for the trier of fact.”)

See also Scruggs v. State, 317 N.E.2d 807, 809 (Ind. Ct. App. 1974)(citing Miller v. State, 307 N.E.2d 889, 890 (Ind. Ct. App. 1974), reh’g denied)(“Whether the evidence is sufficient to rebut a claim of self-defense is a question of ultimate fact to be decided by the trier of fact.”)

Defense of persons: Statutory text

• 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.

IC 35-41-3-2(c)

Defense of property: Statutory text

• 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.

IC 35-41-3-2(d)

• 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 [IC 35-41-3-2(c)].

IC 35-41-3-2(e)

Standpoint of the defendant

• The question of the existence of . . . danger, the necessity or apparent necessity, as well as the amount[,] of force necessary to employ to resist the attack can only be determined from the standpoint of the defendant at the time and under all the then existing circumstances.

French v. State, 403 N.E.2d 821, 824 (Ind. 1980)

Brand v. State, 766 N.E.2d 772, 781 (Ind. 2002), reh’g denied, trans. denied(quoting French v. State, 403 N.E.2d 821, 824 (Ind. 1980))

• Focusing on the “standpoint of the defendant” means at least two things: (1) the trier of fact must consider the circumstances as they appeared to the defendant, rather than to the victim or anyone else; and (2) the defendant’s own account, although not required to be believed, is critically relevant testimony.

Hirsch v. State, 697 N.E.2d 37, 42 n. 10 (Ind. 1998)(emphasis added)

Brand v. State, 766 N.E.2d 772, 781 (Ind. 2002), reh’g denied, trans. denied(citing Hirsch v. State, 697 N.E.2d 37, 42 n. 10 (Ind. 1998))

• We highlighted the “standpoint of the defendant” language from French, and again emphasized that the language meant the jury should examine circumstances as they appeared to the defendant. But while the defendant’s own account is critically relevant, the standard is still the reasonableness of the belief of the defendant.

Washington v. State, 997 N.E.2d 342, 349 (Ind. 2013)(referencing Hirsch v. State, 697 N.E.2d 37, 42 n. 10 (Ind. 1998))

Interpretations of “reasonable force”

• The amount of force which is reasonably necessary to defend oneself is determined from the standpoint of the accused in light of the surrounding circumstances.

Geralds v. State, 647 N.E.2d 369, 373 (Ind. Ct. App. 1995), trans. denied(citing Gunn v. State, 365 N.E.2d 1234, 1240 (Ind. Ct. App. 1977))

See Stallings v. State, 264 N.E.2d 618, 620 (Ind. 1970), reh’g denied, cert. denied, 402 U.S. 997 (1971)(“It is true that when a person is attacked, especially in the confines of his own home, courts will look to the situation as it would reasonably appear to the person being attacked as to what force would be necessary to resist the attack, and this can only be determined from the standpoint of the person being attacked under all of the existing circumstances.”)

• “However, the force used must be proportionate to the requirements of the situation.”

Weedman v. State, 21 N.E.3d 873, 892 (Ind. Ct. App. 2014), trans. denied(quoting McKinney v. State, 873 N.E.2d 630, 643 (Ind. Ct. App. 2007), trans. denied)

See Morrison v. State, 613 N.E.2d 865, 868 (Ind. Ct. App. 1993), trans. denied(citing Porter v. State, 543 N.E.2d 390, 391 (Ind. 1987))(“[I]n all self-defense claims, the force employed must not be out of proportion to the apparent urgency of the situation.”)

See also Mateo v. State, 981 N.E.2d 59, 72 (Ind. Ct. App. 2012), trans. denied(citing Harmon v. State, 849 N.E.2d 726, 730-31 (Ind. Ct. App. 2006))(“The amount of force that a person may use to protect himself or herself depends on the urgency of the situation.”)

• A claim of self-defense will fail if the person “uses more force than is reasonably necessary under the circumstances.”

Weedman v. State, 21 N.E.3d 873, 892 (Ind. Ct. App. 2014), trans. denied(quoting Sudberry v. State, 982 N.E.2d 475, 481 (Ind. Ct. App. 2013))

See Mateo v. State, 981 N.E.2d 59, 72 (Ind. Ct. App. 2012), trans. denied(quoting Harmon v. State, 849 N.E.2d 726, 731 (Ind. Ct. App. 2006))(“[I]f an individual uses ‘more force than is reasonably necessary under the circumstances,’ his self-defense claim will fail.”)

• “Where a person has used more force than necessary to repel an attack the right to self-defense is extinguished, and the ultimate result is that the victim then becomes the perpetrator.”

Weedman v. State, 21 N.E.3d 873, 892 (Ind. Ct. App. 2014), trans. denied(quoting Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind. Ct. App. 1999))

Geralds v. State, 647 N.E.2d 369, 373 (Ind. Ct. App. 1995), trans. denied(citing Degenias v. State, 386 N.E.2d 1230, 1231 (Ind. Ct. App. 1979))

Interpretations of “reasonably believes to be the imminent use of unlawful force”

• The ‘reasonableness’ of a defendant’s belief that he was entitled to act in self-defense is determined from that point in time at which the defendant takes arguably defensive action. That belief must be supported by evidence that the alleged victim was imminently prepared to inflict bodily harm on the defendant.

Henson v. State, 786 N.E.2d 274, 278 (Ind. 2003)

• In his confession to [an employee of the Tippecanoe County Sheriff’s Department], [the defendant] stated [the victim] approached him with his underwear down around his ankles, grabbed his waist, and attempted to grab his penis. He further stated [the victim] was small in stature and never attempted to fight with him. It is impossible to accept [the defendant’s] incredible contention that he believed himself to be in danger from a small man stumbling about with his ankles bound by his own underwear. This is especially true in light of [the defendant’s] observation that [the victim] never fought with him. Self-defense is not available when the fear of imminent threat is not objectively reasonable.

Schick v. State, 570 N.E.2d 918, 927 (Ind. Ct. App. 1991), reh’g denied, trans. denied(emphasis added)(citation omitted)

• The requirement that the threat be imminent is an acknowledgement that oftentimes combatants make threats of violence which are never carried out. A person claiming self-defense cannot reasonably base a belief that the threat is imminent on the actions of another who has withdrawn from the confrontation.

Henson v. State, 786 N.E.2d 274, 278 (Ind. 2003)

• Officer Churchman was in a marked police car, identified himself as a police officer multiple times, and instructed [the defendant] to put his hands in the air. [Officer Churchman] testified [the defendant] “star[ed]” at him for “three to four seconds,” and then opened fire. That testimony negates two requirements of [the defendant’s] self-defense claim—that he was not the initial aggressor, and that he reasonably believed he was in imminent danger.

Tharpe v. State, 955 N.E.2d 836, 845 (Ind. Ct. App. 2011), trans. denied(citation to the record omitted)

• [Unlawful force is] [f]orce that is directed against a person without that person’s consent, and that is a criminal offense or an actionable tort.

Black’s Law Dictionary ? (10th ed. 2014)(citation omitted)

• [Force is] [p]ower, violence, or pressure directed against a person or thing.

Black’s Law Dictionary ? (10th ed. 2014)(citation omitted)

Use of deadly force: In general

• “‘[T]he law of self defense is a law of necessity;’ the right of self-defense arises only when the necessity begins, and equally ends with the necessity; and never must the necessity be greater than when the force employed defensively is deadly.”

Whipple v. State, 523 N.E.2d 1363, 1366 (Ind. 1988)(quoting United States v. Peterson, 483 F.2d 1222, 1229, (D.C. Cir. 1973), cert. denied, 414 U.S. 1007 (1973)(quoting Holmes v. United States, 11 F.2d 569, 574 (D.C. Cir. 1926)))

• Before a person is justified in purposely killing an assailant in self-defense, he must believe that killing is necessary to preserve his own life or to prevent great bodily harm.

Sanders v. State, 428 N.E.2d 23, 25-26 (Ind. 1981)

• Self-defense requires a showing that “the defendant was in real danger of death or great bodily harm, or in such apparent danger as caused him, in good faith, to fear death or great bodily harm.”

Geralds v. State, 647 N.E.2d 369, 373 (Ind. Ct. App. 1995), trans. denied(quoting Franklin v. State, 364 N.E.2d 1019, 1021 (Ind. 1977))

• The danger need not be actual, but the belief must be in good faith and the reaction must be reasonable.

Franklin v. State, 364 N.E.2d 1019, 1021 (Ind. 1977)

See Weedman v. State, 21 N.E.3d 873, 891 (Ind. Ct. App. 2014), trans. denied(citing Shepard v. State, 451 N.E.2d 1118, 1120-21 (Ind. Ct. App. 1983))(“There need not be actual danger—a good faith belief is sufficient.”)

See also Wardlaw v. State, 286 N.E.2d 649, 650 (Ind. 1972), reh’g denied, cert. denied, 411 U.S. 908 (1973)(citing Banks v. State, 276 N.E.2d 155, 159 (Ind. 1971), reh’g denied)(“It is true that the defendant may act upon appearances that seem to be threatening his life even though he may actually be mistaken.”)

• [In the situation where a person believes in good faith upon reasonable grounds that he is about to be attacked, even though that assumption is erroneous,] the law is clear that he must act immediately without fault and without discovering that he is in error concerning the impending attack. Of course, in such a situation[,] if he does, in fact, discover[,] or [through] the exercise of reasonable care would discover[,] that he was not, in fact, in danger[,] then he would not be entitled to invoke self-defense.

Green v. State, 438 N.E.2d 266, 268 (Ind. 1982)

• There is no showing that any discernable interval of time elapsed between the time when the decedent, falling backward to the ground and dropping the club, said ‘I quit,’ and the time of delivery of the fatal stab or stabs. We might assume, as the jury apparently did, that the defendant was in no real danger at this time; but if this be true, he nevertheless by then had been transformed into a savage beast fighting for his own life. The law will not, under such circumstances, presume or infer that he had the ability at that instant to discern his altered position but will realize that although the real danger may have passed, he still, in good faith, believed himself to be in grave peril, and such belief was warranted under the circumstances.

Banks v. State, 276 N.E.2d 155, 158-59 (Ind. 1971)

• When one is assaulted in a manner that does not appear to threaten great bodily harm, he may not purposely kill in self-defense.

Traylor v. State, 420 N.E.2d 887, 889 (Ind. 1981)(citing Loyd v. State, 398 N.E.2d 1260, 1264 (Ind. 1980), reh’g denied, cert. denied, 449 U.S. 881 (1980))

Use of deadly force: There is no duty to retreat

• A very brief examination of the American authorities makes it evident that the ancient doctrine, as to the duty of a person assailed to retreat as far as he can, before he is justified in repelling force by force, has been greatly modified in this country, and has with us a much narrower application than formerly. Indeed, the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement or even to save human life, and that tendency is well illustrated by the recent decisions of our courts, bearing on the general subject of the right of self-defence.

Runyan v. State, 57 Ind. 80, 84 (Ind. 1877)

Use of deadly force: Definitions and interpretations of “serious bodily injury”

• For definitions and interpretations of “serious bodily injury,” please review Serious Bodily Injury.

Use of deadly force: Definition and interpretations of “forcible felony”

• “Forcible felony” means a felony that involves the use or threat of force against a human being, or in which there is imminent danger of bodily injury to a human being.

IC 35-31.5-2-138

Huber v. State, 805 N.E.2d 887, 891 (Ind. Ct. App. 2004)(quoting IC 35-41-1-11 [recodified at IC 35-31.5-2-138 without substantive changes])

• [A]ll robberies are by definition forcible felonies.

Olson v. State, 563 N.E.2d 565, 569 (Ind. 1990)

• Assisting a criminal is not a forcible offense.

Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999)

Use of deadly force: Examples from case law

• Firing multiple shots undercuts a claim of self-defense.

Hood v. State, 877 N.E.2d 492, 497 (Ind. Ct. App. 2007), trans. denied(citing Randolph v. State, 755 N.E.2d 572, 575 (Ind. 2001))

Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999)(citing Birdsong v. State, 685 N.E.2d 42, 46 (Ind. 1997))(“[W]e have previously held that the firing of multiple shots undercuts a claim of self-defense.”)

E.g., Schlegel v. State, 150 N.E.2d 563, 568 (Ind. 1958), reh’g denied(“If, as the State police officer and the deputy sheriff testified, the deceased was felled by the first shot and [the defendant] rushed at him and fired the second shot while deceased was lying on the ground, it would seem that the danger of death or great bodily harm to [the defendant], if any, had ceased with the firing of the first shot and the right of self-defense ceased with it.”)

• We would further point out that even if we would accept [the defendant’s] statement that he was first struck in the mouth with a lady’s purse, we can hardly accept his argument that being attacked by a woman swinging her purse is life threatening enough to justify self-defense by the use of a knife.

Harper v. State, 523 N.E.2d 1389, 1391 (Ind. 1988)

• Deadly force is not justifiable when used against a person trespassing upon property, in the absence of an imminent threat against the accused.

Geralds v. State, 647 N.E.2d 369, 373 (Ind. Ct. App. 1995), trans. denied(citing Bullard v. State, 195 N.E.2d 856, 857 (Ind. 1964), reh’g denied)

• [T]hreats alone are not sufficient to warrant the use of deadly force.

Young v. State, 451 N.E.2d 91, 93 (Ind. Ct. App. 1983)(citing DeBoor v. State, 182 N.E.2d 250, 253 (Ind. 1962), reh’g denied, cert. denied, 371 U.S. 848 (1962))

See DeBoor v. State, 182 N.E.2d 250, 253 (Ind. 1962), reh’g denied, cert. denied, 371 U.S. 848 (1962)(“Threats alone are not sufficient to justify the taking of a human life . . . .”)

• [D]eadly force may never be used by a non-law enforcement officer to effect the arrest or prevent the escape of a felon. The justified deadly force is to prevent injury, the imminent danger of injury or force, or the threat of force, not to effect an arrest or prevent escape.

Rose v. State, 431 N.E.2d 521, 523 (Ind. Ct. App. 1982), reh’g denied

Use of deadly force: Comparison to the use of non-deadly force

• A reasonable fear of death or serious bodily harm is undoubtedly required in a case involving deadly force. But when a case does not involve deadly force, a defendant claiming self-defense must only show that he was protecting himself from what he “reasonably believe[d] to be the imminent use of unlawful force.”

Dixson v. State, 22 N.E.3d 836, 839 (Ind. Ct. App. 2014), trans. denied(quoting IC 35-41-3-2(c))

When a person is not justified in using force to defend persons or property: Statutory text

• [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.

IC 35-41-3-2(g)

When a person is not justified in using force to defend persons or property: Committing a crime

• A person who kills while committing or attempting to commit a robbery is a person who kills while committing a crime and so the defense of self-defense is not available.

Roche v. State, 690 N.E.2d 1115, 1124 (Ind. 1997), reh’g denied

See Rouster v. State, 705 N.E.2d 999, 1006 (Ind. 1999), reh’g denied(citing IC 35-41-3-2(d)(1) [recodified at IC 35-41-3-2(g)(1) without substantive changes])(“Self-defense is not available, however, as an affirmative defense when one is engaged in the commission of a robbery.”)

When a person is not justified in using force to defend persons or property: Definition of “unlawful act”

• [An unlawful act is] [c]onduct that is not authorized by law; a violation of civil or criminal law.

Black’s Law Dictionary ? (10th ed. 2014)

When a person is not justified in using force to defend persons or property: Definitions and interpretations of “bodily injury”

• For definitions and interpretations of “bodily injury,” please review Bodily Injury.

When a person is not justified in using force to defend persons or property: Claims of self-defense by an initial aggressor or mutual combatant

• An initial aggressor or a mutual combatant, whether or not the initial aggressor, must withdraw from the encounter and communicate the intent to do so to the other person before he may claim self-defense.

Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011), trans. denied(citing Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002))

See Smith v. State, 506 N.E.2d 31, 34 (Ind. 1987)(“It was proper for the trial court to instruct the jury that if [the defendant] was the initial aggressor, or an equal combatant, he was not justified in using deadly force unless he first withdrew, and communicated this to the victim.”)

See also Miller v. State, 720 N.E.2d 696, 700 n. 2 (Ind. 1999)(“IC 35-41-3-2 contains an exception to the general rule that a claim of self-defense is not available to an initial aggressor. A self-defense claim is available to an initial aggressor only if he or she withdraws from the encounter and communicates to the other person his or her intent to withdraw but the other person nevertheless continues or threatens to continue unlawful action.”)

See also Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002)(citing Wooley v. State, 716 N.E.2d 919, 926 (Ind. 1999), reh’g denied)(“[A] mutual combatant, whether or not the initial aggressor, must declare an armistice before he or she may claim self-defense.”)

• One who was the aggressor initially but withdrew or attempted to withdraw only to have the other renew or continue the fight can slay his adversary in self-defense.

See McDonald v. State, 346 N.E.2d 569, 572 (Ind. 1976), reh’g denied, overruled on other grounds by Watts v. State, 885 N.E.2d 1228, 1233 (Ind. 2008))

When a person is not justified in using force to defend persons or property: Examples of claims of self-defense by an initial aggressor or mutual combatant

• In this case we think that the jury could have found from the evidence and the reasonable inferences deducible therefrom that [the defendant] started the fight with the victim. The fact of [the defendant’s] fault in instigating the combat would[,] we believe, preclude him from raising the defense of self-defense.

Cammack v. State, 261 N.E.2d 862, 865 (Ind. 1970)

• Although in his brief [the defendant] draws numerous conclusions attempting to rationalize that he was attacked by the victim and only defended himself, when this record is examined there is not a scintilla of evidence to support such a claim. The evidence in this case is unequivocal that from the moment [the defendant] stopped his automobile in the middle of the street and began the pursuit of the victim he was the aggressor and remained so until he pursued the victim into the used car lot and stabbed him. There is ample evidence in this record to sustain [the defendant’s] conviction.

Adkins v. State, 524 N.E.2d 1274, 1275 (Ind. 1988)

• Notwithstanding [the defendant’s] contention, this evidence did not establish a valid claim of self-defense. Rather, this evidence showed that [the defendant] instigated the violence and was a mutual combatant in the incident. . . . [E]ven by [the defendant’s] own account, it was established that he and [the victim] were engaged in a mutual shoving match that escalated without any attempt by [the defendant] to withdraw from the encounter. Even more compelling, the jury was not required to credit [the defendant’s] self-serving version of events. As noted above, the State’s evidence established that [the victim] grabbed the hammer and used it to push [the defendant] off of him. [The defendant] responded by hitting [the victim] in the temple with the table leg and threatening to kill him. This evidence, even if credited, more than sufficiently rebuts [the defendant’s] claim of self-defense. Indeed, the evidence shows that [the defendant] was the initial aggressor who instigated and provoked the violence.

Kimbrough v. State, 911 N.E.2d 621, 635-36 (Ind. Ct. App. 2009)(citations to the record omitted)

• Even though [the victim] was the initial aggressor in this case . . . the fact that [the defendant] (1) chose to fight back after [the victim] threw the first punch, and (2) grabbed a gun after the two were separated and then shot [the victim] in the back as [the victim] ran away, supports the conclusion that [the defendant] was not laboring under a reasonable fear of death or great bodily harm. . . . We conclude that the State presented sufficient evidence to rebut [the defendant’s] self-defense claim.

Hobson v. State, 795 N.E.2d 1118, 1122 (Ind. Ct. App. 2003), trans. denied

• While the criminal code is willing to excuse the use of force in certain circumstances to protect against certain unlawful activity, it does not countenance and will not sanction premeditated retaliation for past violence.

Henson v. State, 786 N.E.2d 274, 278 (Ind. 2003)

Against a public servant: Statutory text

• 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.

IC 35-41-3-2(i)

• Notwithstanding [IC 35-41-3-2(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.

IC 35-41-3-2(j)

Against a public servant: General interpretations of the statutory text

• The common law rule, still widely recognized, has been that a citizen is permitted to use reasonable force to resist an illegal arrest. Indiana’s criminal code recognizes this principle through [IC 35-41-3-2(i)].

Griffin v. State, 997 N.E.2d 375, 380 (Ind. Ct. App. 2013), trans. denied(internal citation omitted

• We note that the legislature amended IC 35-41-3-2, effective March 20, 2012, to restore a citizen’s right to use reasonable force to protect themselves against unlawful entry by police officers.

Garcia v. State, 976 N.E.2d 85, 90 n. 4 (Ind. Ct. App. 2012), trans. denied(citing IC 35-41-3-2(i)(2))

E.g., Cupello v. State, 27 N.E.3d 1122, 1131 (Ind. Ct. App. 2015)(“[A]s a matter of law, [the defendant] was entitled to use reasonable force to terminate Constable Webb’s unlawful entry and to prevent further entry by Constable Webb into his home.”)

Against a public servant: Definitions and interpretations of “public servant”

• 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.

IC 35-41-3-2(b)

• “Federal enforcement officer” means any of the following:

(1) A Federal Bureau of Investigation special agent.

(2) A United States Marshals Service marshal or deputy.

(3) A United States Secret Service special agent.

(4) A United States Fish and Wildlife Service special agent.

(5) A United States Drug Enforcement Agency agent.

(6) A Bureau of Alcohol, Tobacco, Firearms and Explosives agent.

(7) A United States Forest Service law enforcement officer.

(8) A United States Department of Defense police officer or criminal investigator.

(9) A United States Customs Service agent.

(10) A United States Postal Service investigator.

(11) A National Park Service law enforcement commissioned ranger.

(12) United States Department of Agriculture, Office of Inspector General special agent.

(13) A United States Citizenship and Immigration Services special agent.

(14) An individual who is:

(A) an employee of a federal agency; and

(B) authorized to make arrests and carry a firearm in the performance of the individual’s official duties.

IC 35-31.5-2-129

• “Law enforcement officer” means:

(1) a police officer (including a correctional police officer), sheriff, constable, marshal, prosecuting attorney, special prosecuting attorney, special deputy prosecuting attorney, the securities commissioner, or the inspector general;

(2) a deputy of any of those persons;

(3) an investigator for a prosecuting attorney or for the inspector general;

(4) a conservation officer;

(5) an enforcement officer of the alcohol and tobacco commission;

(6) an enforcement officer of the securities division of the office of the secretary of state; or

(7) a gaming agent employed under IC 4-33-4.5 or a gaming control officer employed by the gaming control division under IC 4-33-20.

IC 35-31.5-2-185(a)

• A constable is a public servant.

Cupello v. State, 27 N.E.3d 1122, 1129 n. 7 (Ind. Ct. App. 2015)(citing IC 35-31.5-2-185(a)(1))

• We agree with [the defendant] that it is possible for a private security guard to also have law enforcement powers. However, merely working as a private security guard does not vest that person with the auspices of being a public servant and a law enforcement officer.

Rogers v. State, 741 N.E.2d 395, 398 (Ind. Ct. App. 2000), trans. denied(emphasis added)

• [W]e hold that statutory authority exists for the appointment of deputies by a sheriff or the merit board. If a deputy is performing duties under the color of appointment to the office, he is a de facto officer although some infirmities may exist which prevent the appointment from being valid.

Carty v. State, 421 N.E.2d 1151, 1154 (Ind. Ct. App. 1981)

• A Town Marshal is a law enforcement officer.

Hart v. State, 671 N.E.2d 420, 425 (Ind. Ct. App. 1996), overruled on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1207 n. 10 (Ind. 2007)

• The Legislature has not included defense attorneys in the definition of law enforcement officers.

Schalk v. State, 943 N.E.2d 427, 430 (Ind. Ct. App. 2011), trans. denied

Against a public servant: Interpretations of “unlawful entry”

• The placement of Constable Webb’s foot inside the threshold of the apartment door was an unlawful entry by a public servant into [the defendant’s] dwelling . . .

Cupello v. State, 27 N.E.3d 1122, 1132 (Ind. Ct. App. 2015)

Against a public servant: When a person is not justified in using deadly force against a public servant

• 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.

IC 35-41-3-2(k)

Admissibility of evidence

• When a defendant asserts self-defense, any fact that reasonably would place a person in fear or apprehension of death or bodily injury is admissible.

Weedman v. State, 21 N.E.3d 873, 883 (Ind. Ct. App. 2014), trans. denied(citing Russell v. State, 577 N.E.2d 567, 568 (Ind. 1991))

See Brand v. State, 766 N.E.2d 772, 781 (Ind. Ct. App. 2002), reh’g denied, trans. denied(quoting Russell v. State, 577 N.E.2d 567, 568 (Ind. 1991))(“When a claim of self-defense is interposed, ‘[a]ny fact which reasonably would place a person in fear or apprehension of death or great bodily injury is admissible.’”)