Indiana has adopted standing one’s ground (generally referred to as a part of the Castle Doctrine as it relates to home and curtilage) as a part of the affirmative defense of self-defense to protect a person’s home and curtilage. This allows the use of deadly force without retreating. Under this legal right, the situation often arises where someone fires a “warning shot” to direct (scare off) someone from their property. This blog post addresses this legally thorny issue, noting the most prudent course is to avoid such and contact the police.
Where a “warning shot” is fired, this creates a factually sensitive situation as to if the act is lawful or criminal. Clearly, a person can use deadly force to protect their home and curtilage.1 However, when there is no risk to the property, forcible felony occurring, or potential of seriously bodily injury or death, a driveway or sidewalk on one’s property is an invitation to come onto the property.2 It is not until this right or license to do so is revoked that standing one’s ground may apply.
Until this factually and temporally “fuzzy” point is crossed, firing a warning shot may be prosecuted as the felony crime of criminal recklessness, particularly if the warning shot is fired in the direction of the person coming onto the property or in another other unsafe direction (namely in an orientation where a gun would not ordinarily be fired and could be expected to cause harm). This includes shooting up into the air, given what goes up, comes down.
Thus, there is no automatic right to fire a warning shot at someone coming onto a person’s property. Doing so legally may well require a carefully set forth description of why this “warning shot” crossed into the standing one’s ground criminal defense. Ultimately, in these situations (necessary or required), the person firing a warning shot should–to a legal certainty–assert their right to remain silent and obtain counsel before speaking with the police or a prosecutor about specific facts necessitating the “warning shot”.
The reason for this is among other things that science demonstrates the difficulty of accurately recounting all details in the aftermath such a situation (part of the fight or flight response genetically programmed in everyone); and if material facts are “forgotten” but later “remembered”, the story (criminal defense) may lack credibility and fail. This means one may receive a criminal conviction for this “warning shot”.
This blog post is written by attorneys at Ciyou & Dixon, P.C. who handle a variety of firearms cases and criminal defenses throughout the State. This blog is provided for general informational and educational purposes. It is not specific legal advice or a solicitation for services, nor a direction of when and if a “warning shot” should be utilized. It is provided to help you be more educated about this controversial topic. This blog is an advertisement.
- Assuming there is no prosecution, a civil suit for injury to the person intruding on the property or wrongful death case is likely to proceed.
- This blog does not cover the situation where a “no trespassing” sign is conspicuously posted.