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.

NEXT: Justice Brennan rejected the "literal" meaning of Title VII in United Steel Workers v. Weber

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  1. There was the White case on Long Island in which a black man killed a white teenager under circumstances in which all parties behaved like morons and the jury essentially gave the black adult the minimum time for criminal possession of a weapon. So he was found guilty of manslaughter but it was concurrent with the criminal possession of a weapon which there was no defense to. Then NY Governor Patterson commuted his sentence after huge gun control advocate Al Sharpton got involved.

  2. Certainly seems like a reasonable outcome – including not judging the actual case before them (that being a job for a properly instructed jury). Certainly were I a juror I would have understood the prior instruction to foreclose the self-defense claim entirely.

    1. “Certainly were I a juror I would have understood the prior instruction to foreclose the self-defense claim entirely.”

      But then I would have ignored the instruction, because it strikes me as stupid. I would like to think jurors would do that in a situation like this.

      1. Larvell,
        Why would you think the average juror would explicitly go against a judge’s instructions? That seems counter-intuitive…even if you yourself might do so in similar situations.

        1. “Why would you think the average juror would explicitly go against a judge’s instructions?”

          Because the judge’s instructions are irredeemably unjust and the jury has the right (responsibility in my opinion) to judge the law as well as the defendant.

          1. Matthew,
            I was not asking a moral question (I get why an informed juror might vote in a way that advanced her conscience or moral framework.)

            I was asking a more real-life question: Almost all jurors are (not surprisingly) almost completely uninformed about history, constitutional law, etc. They’re just normal average people. People who listen to voices of authority, and take it as a given that when a teacher, cop, judge, etc tells you to follow instructions, you do so. The point I was trying to make was that, for these people, it’s unrealistic to expect them to swim against the tide. They might vote against a majority opinion on the jury. But go against what the judge is ordering them to do? Much much much less likely, IMO.

            1. santamonica811: I think you’re generally right, and your analysis is also probably right in Indiana. Still, it’s worth noting that (1) the Indiana Constitution expressly provides, “In all criminal cases whatever, the jury shall have the right to determine the law and the facts,” and (2) Indiana Pattern Criminal Jury Instruction 1.0300 actually informs juries of that, though with a shout-out to the judge:

              Under the Constitution of Indiana, you have the right to determine both the law and the facts. The Court’s/my instructions are your best source in determining the law.

              1. Oh, wow, interesting. Do you happen to know if this a common jury instruction in a lot of states?

                1. It is called jury nullification. SCOTUS said it exists, but it is hugely controversial. You can get arrested for giving information about jury nullification to juries.


          2. I’m of two minds on jury nullification. I like the idea of juries being able to stop an injustice, but the historical reality is that nullifying juries have caused injustice at least as often. For example, racist juries refusing to convict people who committed crimes against blacks. See Emmet Till.

            It’s a two edged sword. Yes it sometimes produces a just result, but essentially giving jurors Carte Blanche to vote their prejudices may not be a good thing either.

            1. but the historical reality is that nullifying juries have caused injustice at least as often. For example, racist juries refusing to convict people who committed crimes against blacks. See Emmet Till.

              The same is true of many of the basic principles that underlie our justice system. Does “innocent until proven guilty” ring a bell? I think it has something to do with something some Englishman once said about the preferred ratio of guilty persons who escape punishment to the number of innocent ones who suffer.

    2. Reasonable outcome, yes. I’m still not fond of the bullet accounting towards the end of the opinion. For instance, judging from the quote “was either falling down or already on the ground,”, shooting is no longer self-defense as soon as the aggressor is falling. How long does it take for the brain of the person defending themselves to process that the aggressor is in the process of falling?

  3. I saw that decision on Friday and almost fainted. A pro-defendant decision from the Indiana Supreme Court?

  4. carrying a handgun without a license

    This is the real problem. You should not need a license to carry a handgun.

    1. I’d be okay requiring a permit to carry a handgun when women need a permit to get an abortion and gay men need an abortion for their sodomy.

      1. Aktenberg78: Oddly enough, one of the advantages of sodomy is ….

        1. I entertained the thought that Aktenberg89 was being clever, and meant “when sodomites get pregnant” along the lines of “when pigs fly”, but he probably just wrote “abortion” when he meant to write “permit”.

          1. And I promoted him by 11. Thank you again, missing edit function.

      2. There was a free speech issue some years back when a professor responded to a proposal to license guns by licensing vaginas and spoke of all the problems that “unlicensed vaginas” cause.

  5. So I have two questions. (1) Weren’t the disputed facts things witnesses would have clarified at trial (or was no one talking?). The decision seems to treat this as he said/he said. And (2) Gammons actually had friends?

  6. This is very similar to what happened on vinalhaven island — the island infamous for gun-toting rednecks imposing quarantines earlier this year.

    30 or so delinquents accompany someone who has told everyone he intends to kill someone (with a criminal record) and then invade his house on the edge of darkness. Well, the attacker winds up dead.

    Then when the victim goes back out to the island to get his personal possessions and is confronted by a “peaceful” mob of 30-40 people threatening to kill him, he gives them the finger.
    He’s arrested for that — Cohen v Calif notwithstanding because the cops are basically spineless wimps who will prostitute themselves to the largest mob.

    And “rule of law” still has meaning here…..

  7. Indiana is not California.

    Although persons committing felonies like attempted murder, kidnapping, robbery, etc., have a duty to retreat, they also have the “right” to use force, including deadly force, in self-defense.

    We, on the other hand, have no duty to retreat in California. We can even pursue our attacker. And by “We” I don’t mean the criminals who regularly attack my comments here.

    Neither the perfect nor imperfect self-defense doctrine may “be invoked `by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified.'” (People v. Rangel (2016) 62 Cal.4th 1192, 1226, quoting In re Christian S., supra, 7 Cal.4th at p. 773, fn. 1.)

    Similarly, when the defendant initiates the conflict “which leads to the necessity for killing his adversary, the right to stand his ground is not immediately available to him, but, instead, he must first decline to carry on the affray and must honestly endeavor to escape from it. Only when he has done so will the law justify him in thereafter standing his ground and killing his antagonist.” (People v. Holt (1944) 25 Cal.2d 59, 66.)

    As for the possession of firearms for the purpose of self-defense by persons prohibited from possessing firearms:

    “We also reject defendant’s argument that there was insufficient evidence to support his conviction for possession of a firearm by a felon. We recognize, as defendant argues, that the “statutory prohibition against a convicted felon having possession of a firearm is not absolute. For example, in People v. King (1978) 22 Cal.3d 12 [148 Cal. Rptr. 409, 582 P.2d 1000], the California Supreme Court … held, `when [a convicted felon] is in imminent peril of great bodily harm or reasonably believes himself or others to be in such danger, and without preconceived design on his part a firearm is made available to him, his temporary possession of that firearm for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continues, does not violate [former] section 12021.’ [Citation.] The court pointed out, however, that for self-defense or defense of others to excuse a violation of [former] section 12021, `the use of the firearm must be reasonable under the circumstances and may be resorted to only if no other alternative means of avoiding the danger are available. In the case of a felon defending himself alone, such alternatives may include retreat where other persons would not be required to do so.’ [Citation.]” (People v. Pepper (1996) 41 Cal.App.4th 1029, 1034-1035 (Pepper).)” Jones v. Moss, (ND California, March 3, 2020)

  8. The immediately preceding Conspiracy post decried a departure from ‘literal application’ of a statute.

    This post appears to welcome a departure from ‘literal application’ of a statute.

    Experienced consumers of the Volokh Conspiracy may reconcile the apparent incongruity by observing that the first departure precipitated a decision that movement conservatives disdain (in the context of gay-bashing) and the second departure underlies a decision that movement conservatives applaud (in the context of gun-fondling).

    If I have misapprehended this circumstance, I hope a Conspirator explains the situation.

    1. “Why are there different posts from different writers expressing different viewpoints?? I demand unity of thought! Explain yourselves!!” – Rev. Arthur Lol Kirkland

      1. My remark identified the predictable unity of (nearly all) Conspirators in pursuing whichever line of reasoning and statutory interpretation leads to a result preferred by movement conservatives — trampling ostensible principles and recently advanced assertions, if necessary.

  9. The 2ndA gets the worst-possible cases and nastiest-possible defendants. But those are the cases that define a right. Sadly…

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