The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Self-Defense When You're Violating the Law

You generally can't claim self-defense if you're a robber "defending" yourself against your victim's own self-defense—but do you also lose your self-defense rights if your only crime is illegally carrying a handgun?


From Justice Massa's unanimous opinion in Gammons v. State, decided Friday:

At his trial for attempted murder and carrying a handgun without a license, Anthony Gammons, Jr. asserted that he acted in self-defense. According to Gammons, he feared for his and his son's lives when he shot the intoxicated and aggressive Derek Gilbert—testifying that he knew Gilbert had a history of violence and that Gilbert had threatened him—with a gun he acknowledged he was carrying illegally. After the court instructed the jury that he could not assert self-defense if he committed a crime that was "directly and immediately related" to his confrontation with Gilbert, the jury found Gammons guilty.

Indiana's self-defense statute instructs that "a person is not justified in using force if the person," among other things, "is committing … a crime." But because "literal application" of that statute can lead to absurd results, we have held that "there must be an immediate causal connection between the crime and the confrontation." Mayes v. State (Ind. 2001). Because the jury instruction used here—that a crime and confrontation need only be "related" to defeat self-defense—diluted this causal standard, and because we can't conclude that this instructional error was harmless, we reverse and remand for a new trial….

According to his testimony, Anthony Gammons, Jr., after going to the movies and paintballing with his ten-year-old son, intended to briefly swing by his incarcerated cousin's house during a party to make sure nothing was broken. But when he and his son pulled up to the home, Gammons saw a crowd milling about outside, including Derek Gilbert. In the decade they'd been acquainted, Gammons had come to believe that Gilbert liked to get drunk, liked to start fights, and liked to knock out, shoot at, bully, and rob people, including his own friends. And Gammons knew that Gilbert had been previously charged with murder.

So when he stepped out of his car and an intoxicated Gilbert immediately started accosting him, Gammons was put on edge. Despite Gammons openly carrying a handgun and attempts by Gammons and bystanders to calm the situation, Gilbert persisted, squaring up as if to punch Gammons, pulling at his waistband, and asking if Gammons was "casket ready." Gammons then drew his gun and shot at Gilbert because, as he later avowed at trial, he feared for his life and for that of his son.

But even after he was hit, Gilbert did not relent. Instead, while spinning around, Gilbert continued "aggressing" toward Gammons and reaching in his pants, "like he was grabbing for something." But as soon as Gammons saw Gilbert "retreat and run away," he "stopped shooting," professing that he "was in shock" at how the events had unfolded. After a few moments passed, Gammons calmly walked back to his car and drove off. Although he was struck six times, Gilbert survived.

Gammons was later charged with attempted murder and carrying a handgun without a license. At his jury trial, Gammons—who conceded that he was carrying the handgun without a license—asserted that he shot Gilbert only in self-defense. Gilbert, however, disputed this explanation, testifying that he did not wantonly confront Gammons. Instead, despite repeatedly acknowledging that his memories of the incident were blurry, Gilbert surmised that the two argued when Gammons confronted him over a woman. After that brief and nonviolent quarrel subsided, Gilbert and Gammons shook hands and went their separate ways. But just as Gilbert thought the encounter was over, Gammons pulled his weapon and shot Gilbert while his back was turned. "I got shot for no reason," claimed Gilbert.

At the end of his trial, Gammons proposed that the court instruct the jury that he was "justified in using deadly force" if he believed it was "necessary to prevent serious bodily injury to himself and to prevent the commission of the forcible felony battery against himself." But the trial court, over his objection, slightly tweaked this tendered language and inserted language derived from Indiana Pattern Jury Instruction 10.0300—that "a person may not use force if," among other things, "he is committing a crime that is directly and immediately related to the confrontation." After the State emphasized in closing that a person "can't be doing anything illegal at the time" he claimed he was acting in self-defense, the jury found Gammons guilty of both charges….

By requiring that the crime and confrontation just be joined or linked, neither "connected" nor "related" suggest the element of causation demanded by Mayes. Justice Boehm's concurrence in Mayes presaged this diminution of the standard, warning that the Court—by rephrasing that "the evidence must show that but for the defendant committing a crime, the confrontation resulting in injury to the victim would not have occurred"—left open circumstances where a "defendant should be free to claim self-defense." … Read literally, this formulation could foreclose the defense in an instance where a defendant's crime was tenuously connected with the confrontation, like the defense being unavailable to a defendant who "is illegally gambling and a fight erupts because the victim believes the defendant is cheating[, leading] to the victim's death." Since this "but for" test can impede the defense in the same unjust and absurd ways as a literal reading of the statute, we reject that rephrasing and reiterate that self-defense is barred only when there is "an immediate causal connection between the crime and the confrontation."

And we agree with Gammons that this instructional error could have served as the basis for the jury's decision to convict. Because Gammons asserted that he fired the shots only until Gilbert retreated, we cannot be sure that the trial's outcome would have been the same under a proper instruction and presume this error affected the verdict. To be sure, "[f]iring multiple shots undercuts a claim of self-defense" once a defendant disables the purported aggressor. But the account conveyed by Gammons is like that made by a defendant who—after an aggressive and intoxicated driver who almost hit him with his car said "I got something for your ass" and reached for his waistline—grabbed a gun from his van and fired two shots, striking the driver. Hood v. State (Ind. Ct. App. 2007). After the driver continued staggering and allegedly lunged forward, Hood fired four more shots until the driver collapsed. Following Hood's conviction of voluntary manslaughter at trial, however, our Court of Appeals reversed and remanded for a new trial, holding, among other things, that it didn't "find the fact that six shots were fired to be dispositive" when Hood asserted that the driver was still coming toward him as he fired.

Gammons, like Hood, avers that he kept shooting only because his assailant continued at him after he fired his first shots. And Gammons claims that Gilbert was only struck in the back and buttocks because he spun around while he continued advancing. This account differs from an instance where the defense has been repudiated when evidence showed that a defendant

  • shot a victim who "was either falling down or already on the ground," and "at least one bullet struck her in the back";
  • fired three times after a victim raised his hands and said "Do what you got to do";
  • shot one victim in the chest and then "backed up as he was firing, fatally hitting [another victim] three times," all while "he stopped, reloaded, and continued firing";
  • smiled and "brandished a handgun and fired multiple shots at [a victim] as he approached his vehicle";
  • "chopped and shot [victims] several times, even after they were incapacitated";
  • shot a victim—after he fell to his hands and knees—a second time;
  • shot a victim—"who was unarmed and on the ground pleading for his life"—multiple times;
  • shot a victim "multiple times in the back" as he asked "'What's all the loud talk about?' and started to get out of the vehicle";
  • shot a victim after he "went to his knees and put his arms and hands up in a defenseless position";
  • fired "multiple shots, one of which hit an innocent bystander" after a fight was already over; or
  • "shot first," and "[t]wenty-three of the thirty-two bullet casings recovered from the scene were linked to" his gun.

Unlike a defendant shooting at an incapacitated or defenseless victim, Gammons maintains that he shot only until Gilbert retreated. Based on his account of the events leading up to the confrontation, we cannot say with certainty that the jury would have convicted Gammons without hearing the erroneous instruction….

We do not pass judgment today on whether Gammons acted in self-defense when he shot Gilbert. That is a question for the jury, which may yet reject this justification. But we cannot categorically bar those jurors from considering the defense when a crime is merely "related to" or "connected to" a confrontation—rather, as we held in Mayes, there must be an immediate causal connection between the two. Because we cannot conclusively determine that the verdict would have been the same absent this instructional error, we reverse and remand for a new trial.