NFOA MEMBERS FORUM
General Categories => Laws and Legislation => Topic started by: FarmerRick on May 27, 2009, 07:46:45 AM
-
I guess I need to keep a closer eye on the resolutions that are introduced!
LR191 - Interim study to examine Nebraska's laws regarding a persons' right in their home to defend another person's life by reasonable force and to review the Castle Doctrine laws
http://www.nebraskalegislature.gov/FloorDocs/Current/PDF/Intro/LR191.pdf (http://www.nebraskalegislature.gov/FloorDocs/Current/PDF/Intro/LR191.pdf)
ONE HUNDRED FIRST LEGISLATURE
FIRST SESSION
LEGISLATIVE RESOLUTION 191
Introduced by Christensen, 44.
PURPOSE: The purpose of this interim study is to examine Nebraska?s
laws regarding a person?s right in their home to defend his or
her own life or another?s life by reasonable force, which may
include the use of deadly force, and to examine similar laws in
other states that would potentially provide a model for expanding
this right in Nebraska. The right to defend yourself by the use of
reasonable force in one?s home, which may include the use of deadly
force, is generally called the Castle Doctrine. This study shall
include, but not be limited to: (1) An examination of Nebraska?s
laws regarding one?s right to self-defense within the home; (2)
the review of Castle Doctrine laws in other states; and (3) the
development of potential policy changes, if needed, to strengthen
the right to self-defense within the home in Nebraska.
NOW, THEREFORE, BE IT RESOLVED BY THE MEMBERS OF THE ONE
HUNDRED FIRST LEGISLATURE OF NEBRASKA, FIRST SESSION:
1. That the Judiciary Committee of the Legislature shall
be designated to conduct an interim study to carry out the purposes
of this resolution.
2. That the committee shall upon the conclusion of
its study make a report of its findings, together with its
recommendations, to the Legislative Council or Legislature.
I'd like them to study it more than just "in the home", but I'm sure we will have a few people writing in to give suggestions. ;)
-
Hey it beats them doing nothing, I think this is a good thing!
-
Maybe he has been reading Nebraska Firepower
-
Maybe he has been reading Nebraska Firepower
That really wouldn't surprise me
-
Nice! We have some Senators with their heads on straight.
-
This is a good thing. It gets the ball rolling. Hats off to Christensen
-
It seems like Sen. Christiensen is becoming NFOA's voice in the state legislature. This is a good thing.
-
Don't forget about Sen. Tony Fulton. He took a huge political risk , as a Conservative in the liberal bastion of Lincoln, by making LB430 his priority bill. Without that move, it may not have made it out of committee
-
We have a few voices down there in Lincoln right now and they need our support. Scott Laughtenbaugh of Omaha is another friend of ours. Christensen and Fulton though seem to be the top guys.
-
Don't forget Sen. Janssen of Fremont, he co-sponsored LB430.
-
You know what would be neat? A "Take your Senator Shooting" day. Maybe it's a dumb idea, but it would be a fun way to say thank you to those who support us.
-
I sent an email earlier this morning to Sen. Abbie Cornett (my rep in the Uni) asking her to consider either introducing (I hadn't seen this posting at the time) or co-sponsoring a Castle Doctrine bill. My specific request included home, vehicle, watercraft, and locations providing shelter/protection as does a home. I also suggested including language to release a homeowner/defender from liability for injury/death resulting from a "Castle Doctrine use-of-force" encounter, placing that same liability on the "invader" (to include estate and heirs in case of fatal injury), and placing a positive burden of proof on the BG to show that he was on the property "legally." My email was a bit verbose, but if anybody is interested, I'll PM them a copy.
Hope this helps to get the system moving on the issue.
-
This made the newspaper today...
http://www.journalstar.com/articles/2009/06/10/news/local/doc4a2ef55cf045c111949576.txt
Them naming the bill that and the title of the article do not paint the idea in a positive light at all.
However I thought the newspaper did a good job of showing opposing viewpoints within the article itself. Other then the title and first sentence, the article is OK. Comments of course, are mixed.
-
It could have been better but the article was ok I guess.
I wish I had a Senator like him here in S.W. Omaha.
-
KLIN was blathering all day "make my day" bill ......blah blah blah
-
The power of a few girly-men, dope smokers and man hating feminists has gotten out of hand. Can anyone tell me why these articles are written by such? Are there no "men" working for newspapers now-a-days? Reading that made my blood pressure rise a little, but then I remembered it came from a second rate newspaper with poor circulation, and realized this clown was the only one who would work for them at such low pay.
"Laws that give criminal and civil immunity strip decision making from judges and prosecutors, Malte said. They allow an alleged victim to play the role of police officer, prosecutor, judge and executioner, opponents say."
This is what really set me off, referring to the "alleged" victim becoming police, procecuter, judge, and executioner, like it was a bad thing. What about jury? I'd trust a one man jury who knew all the facts more than a cop who made up "facts", a prosecutor with an agenda, or a judge eyeing a higher court seat.
-
I commented on that article. I did the one that starts with, "There is a whole lot of dumb in this comment section" or something like that, towards the bottom.
-
Here's a thought...don't break into people's houses, you don't have to worry about being shot. Novel idea, I know, but it just might work.
I saw the article today and wasn't surprised at the biased headline. The article itself did seem to be fairly balanced, though.
-
We need to work to get rid of the "make my day" nomenclature thats being attached to this. that is going to be a cause of controversy
-
Agreed, I think most rational people would support it if it's explained properly without being tagged with "make my day" or "shoot the burglar" titles.
-
The short blurb that I heard on KFAB's news this morning had some audio from Sen. Christensen. Unfortunately, what I heard had NOTHING TO DO WITH Castle Doctrine.
The media is getting it all distorted already. >:(
-
also posted a comment re: that story... what a bunch of "un-smart" people.
-
I called and talked with KFAB yesterday after they "reported" on this and informed them that this legislation is also called the Castle Doctrine. I told them we have a hard enough time out here and didn't need the "make my day" label. It just doesnt help. The guy who answered the phone said he would look into it. We'll see.
-
I called and talked with KFAB yesterday after they "reported" on this and informed them that this legislation is also called the Castle Doctrine. I told them we have a hard enough time out here and didn't need the "make my day" label. It just doesnt help. The guy who answered the phone said he would look into it. We'll see.
Any idea who you talked to?
-
I believe it was the producer of the Morning Show Roger Olson.
-
You might suggest they take a look at Utah law. Under Utah law, we have "habitation doctrine" rather than "castle doctrine". In essence, it extends the "castle doctrine" to any permanent or temporary camp, residence or habitation.
I know that I am likely to be considered an "outsider" because I don't live in Nebraska, but my daughter and my grandchildren do live in Nebraska. I have been involved in the RKBA for many years and have my share of battle scars from dealing with state legislators, but there are a number of (former) state legislators who have battle scars from dealing with our organizations. The one thing I have learned repeatedly is that it is amazing what a small group of dedicated people can accomplish if they are organized and concentrate their efforts.
-
It may be harder to get passed, but I favor the "anywhere you legally have a right to be" style of legitimizing a person's right to self-defense. Why should it matter if you're in your home or not when someone tries to take your wallet or your life?
-
We don't consider you an outsider, thanks for the post. We need to pick and choose the best laws from other states and make our's the best it can be. That is some good info to consider.
-
Kansas law:
Kansas ? 21-3211: Use of force in defense of a person; no duty to retreat.
(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other's imminent use of unlawful force.
(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.
(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person.
Kansas ? 21-3212: Use of force in defense of dwelling; no duty to retreat.
(a) A person is justified in the use of force against another when and to the extent that it appears to such person and such person reasonably believes that such force is necessary to prevent or terminate such other's unlawful entry into or attack upon such person's dwelling or occupied vehicle.
(b) A person is justified in the use of deadly force to prevent or terminate unlawful entry into or attack upon any dwelling or occupied vehicle if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or another.
(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person's dwelling or occupied vehicle.
Kansas ?21-3213: Use of force in defense of property other than a dwelling.
A person who is lawfully in possession of property other than a dwelling is justified in the threat or use of force against another for the purpose of preventing or terminating an unlawful interference with such property. Only such degree of force or threat thereof as a reasonable man would deem necessary to prevent or terminate the interference may intentionally be used.
AND
Article 32.--PRINCIPLES OF CRIMINAL LIABILITY 21-3219. Use of force; immunity from prosecution or liability; investigation. (a) A person who uses force which, subject to the provisions of K.S.A. 21-3214, and amendments thereto, is justified pursuant to K.S.A. 21-3211, 21-3212 or 21-3213, and amendments thereto, is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of such officer's official duties and the officer identified the officer's self in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, "criminal prosecution" includes arrest, detention in custody and charging or prosecution of the defendant.
(b) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (a), but the agency shall not arrest the person for using force unless it determines that there is probable cause for the arrest.
(c) A county or district attorney or other prosecutor may commence a criminal prosecution upon a determination of probable cause.
History: L. 2006, ch. 194, ? 2; L. 2007, ch. 169, ? 1; May 17.
-
Oklahoma law:
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=69782 (http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=69782)
Oklahoma Statutes Citationized
Title 21. Crimes and Punishments
Chapter 53 - Manufacture, Sale, and Wearing of Weapons
Oklahoma Firearms Act of 1971
Section 1289.25 - Physical or Deadly Force Against Intruder
Cite as: O.S. ?, __ __
A. The Legislature hereby recognizes that the citizens of the State of Oklahoma have a right to expect absolute safety within their own homes.
B. A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
1. The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against the will of that person from the dwelling, residence, or occupied vehicle; and
2. The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
C. The presumption set forth in subsection B of this section does not apply if:
1. The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not a protective order from domestic violence in effect or a written pretrial supervision order of no contact against that person;
2. The person or persons sought to be removed are children or grandchildren, or are otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
3. The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity.
D. A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
E. A person who unlawfully and by force enters or attempts to enter the dwelling, residence, or occupied vehicle of another person is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
F. A person who uses force, as permitted pursuant to the provisions of subsections B and D of this section, is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. As used in this subsection, the term "criminal prosecution" includes charging or prosecuting the defendant.
G. A law enforcement agency may use standard procedures for investigating the use of force, but the law enforcement agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
H. The court shall award reasonable attorney fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection F of this section.
I. The provisions of this section and the provisions of the Oklahoma Self-Defense Act, Sections 1290.1 through 1290.26 of this title, shall not be construed to require any person using a pistol pursuant to the provisions of this section to be licensed in any manner.
J. As used in this section:
1. "Dwelling" means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people;
2. "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest; and
3. "Vehicle" means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
-
Utah law:
http://www.le.utah.gov/UtahCode/getCodeSection?code=76-2-402 (http://www.le.utah.gov/UtahCode/getCodeSection?code=76-2-402)
Utah Code
Title 76 Utah Criminal Code
Chapter 2 Principles of Criminal Responsibility
Section 402 Force in defense of person -- Forcible felony defined.
76-2-402. Force in defense of person -- Forcible felony defined.
(1) A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that force is necessary to defend himself or a third person against such other's imminent use of unlawful force. However, that person is justified in using force intended or likely to cause death or serious bodily injury only if he or she reasonably believes that force is necessary to prevent death or serious bodily injury to himself or a third person as a result of the other's imminent use of unlawful force, or to prevent the commission of a forcible felony.
(2) A person is not justified in using force under the circumstances specified in Subsection (1) if he or she:
(a) initially provokes the use of force against himself with the intent to use force as an excuse to inflict bodily harm upon the assailant;
(b) is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; or
(c) (i) was the aggressor or was engaged in a combat by agreement, unless he withdraws from the encounter and effectively communicates to the other person his intent to do so and, notwithstanding, the other person continues or threatens to continue the use of unlawful force; and
(ii) for purposes of Subsection (i) the following do not, by themselves, constitute "combat by agreement":
(A) voluntarily entering into or remaining in an ongoing relationship; or
(B) entering or remaining in a place where one has a legal right to be.
(3) A person does not have a duty to retreat from the force or threatened force described in Subsection (1) in a place where that person has lawfully entered or remained, except as provided in Subsection (2)(c).
(4) For purposes of this section, a forcible felony includes aggravated assault, mayhem, aggravated murder, murder, manslaughter, kidnapping, and aggravated kidnapping, rape, forcible sodomy, rape of a child, object rape, object rape of a child, sexual abuse of a child, aggravated sexual abuse of a child, and aggravated sexual assault as defined in Title 76, Chapter 5, and arson, robbery, and burglary as defined in Title 76, Chapter 6. Any other felony offense which involves the use of force or violence against a person so as to create a substantial danger of death or serious bodily injury also constitutes a forcible felony. Burglary of a vehicle, defined in Section 76-6-204, does not constitute a forcible felony except when the vehicle is occupied at the time unlawful entry is made or attempted.
(5) In determining imminence or reasonableness under Subsection (1), the trier of fact may consider, but is not limited to, any of the following factors:
(a) the nature of the danger;
(b) the immediacy of the danger;
(c) the probability that the unlawful force would result in death or serious bodily injury;
(d) the other's prior violent acts or violent propensities; and
(e) any patterns of abuse or violence in the parties' relationship.
Amended by Chapter 26, 1994 General Session
-
Colorado law:
http://www.michie.com/colorado/lpext.dll/cocode/2c8c9/2c8f0/2d005/2d0c0?f=templates&fn=document-frame.htm&2.0 (http://www.michie.com/colorado/lpext.dll/cocode/2c8c9/2c8f0/2d005/2d0c0?f=templates&fn=document-frame.htm&2.0)
18-1-704.5. Use of deadly physical force against an intruder.
(1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.
(2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.
(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.
(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.
Source: L. 85: Entire section added, p. 662, ? 1, effective June 6.
Cross references: For limitations on civil suits against persons using physical force in defense of a person or to prevent the commission of a felony, see ? 13-80-119.
-
Florida law:
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0776/SEC013.HTM (http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0776/SEC013.HTM)
The 2009 Florida Statutes
Title XLVI
CRIMES
Chapter 776
JUSTIFIABLE USE OF FORCE
View Entire Chapter
776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.--
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
(4) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
(5) As used in this section, the term:
(a) "Dwelling" means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
(b) "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(c) "Vehicle" means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
History.--s. 1, ch. 2005-27.
-
Indiana law:
http://www.in.gov/legislative/ic/code/title35/ar41/ch3.html (http://www.in.gov/legislative/ic/code/title35/ar41/ch3.html)
Information Maintained by the Office of Code Revision Indiana Legislative Services Agency
IC 35-41-3
Chapter 3. Defenses Relating to Culpability
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.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.7.
IC 35-41-3-2
Use of force to protect person or property
Sec. 2. (a) A person is justified in using reasonable force against another 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.
(b) A person:
(1) is justified in using reasonable force, including deadly force, against another 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.
(c) With respect to property other than a dwelling, curtilage, or an occupied motor vehicle, a person is justified in using reasonable force against another 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 (a).
(d) 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 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.
(e) Notwithstanding subsections (a), (b), and (c), 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.
(f) Notwithstanding subsection (d), 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.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.8; Acts 1979, P.L.297, SEC.1; P.L.59-2002, SEC.1; P.L.189-2006, SEC.1.
IC 35-41-3-3
Use of force relating to arrest or escape
Sec. 3. (a) A person other than a law enforcement officer is justified in using reasonable force against another person to effect an arrest or prevent the other person's escape if:
(1) a felony has been committed; and
(2) there is probable cause to believe the other person committed that felony.
However, such a person is not justified in using deadly force unless that force is justified under section 2 of this chapter.
(b) A law enforcement officer is justified in using reasonable force if the officer reasonably believes that the force is necessary to effect a lawful arrest. However, an officer is justified in using deadly force only if the officer:
(1) has probable cause to believe that that deadly force is necessary:
(A) to prevent the commission of a forcible felony; or
(B) to effect an arrest of a person who the officer has probable cause to believe poses a threat of serious bodily
injury to the officer or a third person; and
(2) has given a warning, if feasible, to the person against whom the deadly force is to be used.
(c) A law enforcement officer making an arrest under an invalid warrant is justified in using force as if the warrant was valid, unless the officer knows that the warrant is invalid.
(d) A law enforcement officer who has an arrested person in custody is justified in using the same force to prevent the escape of the arrested person from custody that the officer would be justified in using if the officer was arresting that person. However, an officer is justified in using deadly force only if the officer:
(1) has probable cause to believe that deadly force is necessary to prevent the escape from custody of a person who the officer has probable cause to believe poses a threat of serious bodily injury to the officer or a third person; and
(2) has given a warning, if feasible, to the person against whom the deadly force is to be used.
(e) A guard or other official in a penal facility or a law enforcement officer is justified in using reasonable force, including deadly force, if the officer has probable cause to believe that the force is necessary to prevent the escape of a person who is detained in the penal facility.
(f) Notwithstanding subsection (b), (d), or (e), a law enforcement officer who is a defendant in a criminal prosecution has the same right as a person who is not a law enforcement officer to assert self-defense under IC 35-41-3-2.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.9; Acts 1979, P.L.297, SEC.2; P.L.245-1993, SEC.1.
IC 35-41-3-4
Repealed
(Repealed by Acts 1977, P.L.340, SEC.148.)
IC 35-41-3-5
Intoxication
Sec. 5. It is a defense that the person who engaged in the prohibited conduct did so while he was intoxicated, only if the intoxication resulted from the introduction of a substance into his body:
(1) without his consent; or
(2) when he did not know that the substance might cause intoxication.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.10; Acts 1980, P.L.205, SEC.1; P.L.210-1997, SEC.4.
IC 35-41-3-6
Mental disease or defect
Sec. 6. (a) A person is not responsible for having engaged in prohibited conduct if, as a result of mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of
the offense.
(b) As used in this section, "mental disease or defect" means a severely abnormal mental condition that grossly and demonstrably impairs a person's perception, but the term does not include an abnormality manifested only by repeated unlawful or antisocial conduct.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.11; P.L.184-1984, SEC.1.
IC 35-41-3-7
Mistake of fact
Sec. 7. It is a defense that the person who engaged in the prohibited conduct was reasonably mistaken about a matter of fact, if the mistake negates the culpability required for commission of the offense.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.12.
IC 35-41-3-8
Duress
Sec. 8. (a) It is a defense that the person who engaged in the prohibited conduct was compelled to do so by threat of imminent serious bodily injury to himself or another person. With respect to offenses other than felonies, it is a defense that the person who engaged in the prohibited conduct was compelled to do so by force or threat of force. Compulsion under this section exists only if the force, threat, or circumstances are such as would render a person of reasonable firmness incapable of resisting the pressure.
(b) This section does not apply to a person who:
(1) recklessly, knowingly, or intentionally placed himself in a situation in which it was foreseeable that he would be subjected to duress; or
(2) committed an offense against the person as defined in IC 35-42.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.13.
IC 35-41-3-9
Entrapment
Sec. 9. (a) It is a defense that:
(1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and
(2) the person was not predisposed to commit the offense.
(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.14.
IC 35-41-3-10
Abandonment
Sec. 10. With respect to a charge under IC 35-41-2-4, IC 35-41-5-1, or IC 35-41-5-2, it is a defense that the person who engaged in the prohibited conduct voluntarily abandoned his effort to commit the underlying crime and voluntarily prevented its commission.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.15.
IC 35-41-3-11
Mental disease or defect; use of justifiable reasonable force
Sec. 11. (a) As used in this section, "defendant" refers to an individual charged with any crime involving the use of force against a person.
(b) This section applies under the following circumstances when the defendant in a prosecution raises the issue that the defendant was at the time of the alleged crime suffering from the effects of battery as a result of the past course of conduct of the individual who is the victim of the alleged crime:
(1) The defendant raises the issue that the defendant was not responsible as a result of mental disease or defect under section 6 of this chapter, rendering the defendant unable to appreciate the wrongfulness of the conduct at the time of the crime.
(2) The defendant claims to have used justifiable reasonable force under section 2 of this chapter. The defendant has the burden of going forward to produce evidence from which a trier of fact could find support for the reasonableness of the defendant's belief in the imminence of the use of unlawful force or, when deadly force is employed, the imminence of serious bodily injury to the defendant or a third person or the commission of a forcible felony.
(c) If a defendant proposes to claim the use of justifiable reasonable force under subsection (b)(2), the defendant must file a written motion of that intent with the trial court not later than:
(1) twenty (20) days if the defendant is charged with a felony; or
(2) ten (10) days if the defendant is charged only with one (1) or more misdemeanors;
before the omnibus date. However, in the interest of justice and upon a showing of good cause, the court may permit the filing to be made at any time before the commencement of the trial.
(d) The introduction of any expert testimony under this section shall be in accordance with the Indiana Rules of Evidence.
As added by P.L.210-1997, SEC.5.
-
Farmer you are a law digging machine. I like the Idea of wherever you have the right to be style law. Never did understand why there was so much leeway given to the criminals. Don't break into my house or pull a gun on me and you won't be staring down the barrel of mine. Seems all too logical to me.
-
I can't really imagine many people in this group not being in favor of a castle law that extends to anywhere you have a legal right to be. After all, it doesn't do much good to have a CHP. or even to be allowed to carry openly, if you can't use the firearm when needed.
-
Exactly, A&H. If you can't use it, whats it good for? I agree with the "anywhere you have a legal right to be" clause. That includes home, vehicle, or yourself on the street or "anywhere you have a legal right to be. Civil immunity when you have been legally justified in criminal court should also be included. We also need to include legal presentation of the weapon (brandishing) and need to provide that if threatened or felt threatened a CHP holder may draw their weapon and point it at the person doing the threatening.
-
Just got a reply from my Unicam rep (Sen Abbie Cornett). She stated that she will not be introducing any Castle Doctrine legislation during the 2010 session, but that she would listen to the debate if another senator does introduce a bill. I'm going to ask her to support any efforts to gather information or other actions that will craft a well-informed and legally-sufficient bill to submit for gubernatorial signature. Will keep the forum posted on any developments.
V/r,
pkv
-
Civil immunity when you have been legally justified in criminal court should also be included.
That's a very, very good suggestion. I think that is a vital part of any bill.
-
Good job AFVet1982. She is also my State Senator and I probably should also remind her about that. She cosponsored the original concealed carry bill in 2006 but she is a former cop and they can go either way on this issue.
-
And the Sen. Annette Dubas who is my nebr senator contact is also a supporter ...