Every year civil and criminal defense attorneys across the state and the citizens at large handle or read headlines about “gun blunders” that cause the once-law-abiding citizen to wind up charged with a criminal act. This blog identified the five most common gun myths to help you avoid them, minimize criminal risk and look inside of the defenses.
Becoming the aggressor:
In many cases, someone with a firearm may be authorized at a given moment in time to stand his or her ground and use deadly force and have an affirmative defense to what would be an otherwise criminal act. However, normally this is a short time and then the right to self-defense expires.
So once the event is over, such as an attempted car-jacking where the car-jacker cannot obtain entry into the car, the driver cannot chase down the car-jacker and shoot him. The forcible felony has stopped when the carjacker fled and the former victim becomes the criminal and will likely be charged with a serious felony.
Normally, these events are very close in time and may be connected. For this reason, retaining counsel before making any police statement is key and may mean the difference between a criminal charge and not charge.
The old criminal defense adage is “if your lips are moving by making a statement of what happened, you are making a mistake.” Once you make the statement, you are welded to it and if you forget a key detail, you will look dishonest and self-serving in trying to later raise it. Don’t do it, “lawyer up.” This may allow you to assert self-defense when the facts are carefully “unpacked” with a knowledgeable attorney.
Using disproportionate force:
Frequently, the Castle Doctrine, no-retreat doctrine, and Indiana’s strong stance a pro-gun state confuse many gun owners as it relates to deadly force. Deadly force is only appropriate in one of three situations: (1) defending ones home, curtilage, occupied motor vehicle, (2) to stop a forcible felony or (3) to mitigate or eliminate the risk of serious bodily injury or death.
However, and again, a person in this situation should lawyer-up and avoid a statement and obtain competent criminal defense counsel. Key facts that you might not think of in the confusion of the instant may be key, such as time of day, sights, smells and all type of other information received through your senses. This is what criminal defense attorneys do best—extract the key and almost imperceptible facts for a defense. If you make a statement and omit a key factor, it might as well not exist.
Standing your ground and using deadly force:
The “Castle Doctrine” that holds a man’s home, yard and occupied motor vehicle is his or her castle. These places of sanctity do not require the owner to flee someone launching an attack on his or her castle. Instead, he or she can stand his or her ground and use force reasonable to defend it—this means you do not have to retreat or run even if it is safe to do so.
However, there are two (2) facets to castle doctrine many gun owners, miss. The force has to be reasonable. This means if someone comes into your yard and starts throwing eggs at your house or making toilet paper “snow” streams in your trees, the force you use in standing your ground must be reasonable and proportionate. Thus, deadly force would not be legal in either situation. Such force would result in a criminal charge and likely civil suit against the homeowner.
Take note and avoid the situation. Your brain and self-preservation for you and the third party are key if no one gets hurt. Sometimes that cannot be avoided, but if you do not properly handle your case from the outset, you may be deemed the aggressor. Little details you will not remember are best fleshed out with defense counsel, not in a fixed police statement. You are presumed innocent under the Constitution so you should act that way. No defense counsel wants to have a case where his or her client has made a statement. Don’t do it.
Carrying everywhere with a license:
First, Indiana is not a state with Constitutional Carry of a handgun. This means that you must have a License to Carry handgun issued by the Indiana State Police to carry a handgun in most places in the State. Second, even with a License to Carry a handgun, there are numerous places where it is illegal to carry a handgun.
These would include, for instance, most federal property, at or through airport checkpoints, and state and local property. Failure to know these exceptions—where you cannot carry—may result in a criminal charge, contempt of court or confiscation, as well as a notice the Indiana State Police are revoking your License to Carry.
If you find yourself in such a situation, skilled criminal counsel or attorneys who handle Handgun License to Carry issues may be invaluable.
More and more people live in cities and closely populated areas. And more and more Hoosiers and Americans as a whole have more firearms in their possession than at any time in history. Firearms are also more complex to operate, clean and store. Anecdotally, it appears there are more accidental discharges.
While in a rural area this is likely to go unnoticed, except with perhaps a rifle round that travels a long distance and injures someone, any accidental discharge (a/k/a negligent discharge) has a much higher probability to penetrating someone else’s house. When this occurs, it is normal for the prosecution to charge the person with criminal recklessness. While this is accidental, it is right at the point where it is criminalized and a Level 6 felony charge in most cases.
Depending upon the facts of the case and the creativity of your defense counsel and position of the victim (the person whose house was impacted), there are defenses and ways to address these cases. However, the first step is to realize this is a criminal act, follow sound gun-handling practices, and then avoid making statements until you have counsel.
A key point to be made for all of these gun crimes is electing not to make a statement does not mean one should be uncooperative or disrespectful to the responding police officers. These are the five blunders you should take great measure to avoid, as failing to do so may result in the loss of life or your conviction and imprisonment.
This blog post was written by attorneys at Ciyou & Dixon, P.C. who handle criminal defense cases and firearms cases throughout the State. This blog post is intended to provide general educational information about avoiding a gun blunder and serious consequences. This blog was written by attorneys at Ciyou & Dixon, P.C. It is not intended as legal advice or a solicitation for services. It is an advertisement.