This Case of the Week involves an Indianapolis man who successfully ambushed three home burglars, killing one and driving off the others, who were ultimately arrested. (Click here for a link to the news report by the IndyStar.)

Local prosecutors have announced that they do not intend to bring charges against the defender. Based on the reported facts this appears to be a perfectly sound call by prosecutors. So, a big win for the good guy, right?

The answer, in an immediate sense, is yes, this was a big win for the good guy. But was it a win worth achieving? Especially given the risks involved, both physical and legal? And the stakes being protected? Those are the issues I’d like to explore in this Case of the Week.

The Situation

Let’s start with the evidence around the actual fight, which is quite favorable to the defender, and what led prosecutors to decline to bring charges.

The defender was in his mother’s house when a dark van, unfamiliar to him, pulled into the driveway with three men inside. It is notable that the house had just the night before been burglarized, with a washer, dryer, and large-screen television stolen. Further, the hot water tank was found drained.

Two men emerged from the van and approached the house, with the third man remaining behind the wheel. When one of the men began to force the locked door of the house, the defender called 911. As the intruder breached the door, the defender ordered the man “to leave and get down.”

The intruder continued to approach the defender while holding “something large in his hand. The defender fired his gun at the intruder, who staggered back out of the house, followed by the defender. As the defender stood on his front porch, the second burglar approached with “something in his hand.” (This was allegedly Kevin Lemaster, shown in the right half of the featured image.) The defender fired multiple rounds at the second burglar, who fled on foot unhurt. The third burglar drove the van away, which had been struck by several of the defender’s shots.

Responding officers found the intruder deceased on the front lawn with a gun beside him. Officers arrested the second burglar as he sought to depart the neighborhood on foot. The next day an airsoft pistol was found along this burglar’s path of flight. The van driver was also later identified and arrested. (This was allegedly Benjamin Gardner, shown in the left half of the featured image.) The defender stood on the sidewalk in front of the home with his hands in the air when officers arrived.

Police recovered the defender’s 9mm handgun from the porch, where the defender had placed it after the burglars had fled.

Prosecutor’s Decision

As already noted, prosecutors have announced that they do not intend to charge the defender. So, does that mean the defender made all the best calls in this encounter? Well, maybe not, especially when we look at the stakes and the risks of the encounter.

First, this house was not an occupied dwelling. It belonged to the defender’s mother, who had the unoccupied house up for sale. It was only after the house had been burglarized of the washer, dryer, and TV, and the hot water tank had been found drained, that the mother asked her son to spend the night in the home, in the expectation that the burglars would return for the hot water tank.

In effect, the mother asked her son to establish an ambush for the burglars she expected to return.

As events proved, the mother’s expectation was correct. The burglars did return, they did encounter the son’s ambush, and the son emerged victorious, both in the physical fight and the legal fight.

It has to be noted, however, that this was not the only possible outcome of this encounter. There’s no magic pixie dust that says the good guy wins the gunfight. This son could well have lost that gunfight, and it could well have been the son who the police found bled out in the front yard.

Even had the son won the physical fight, there’s no certainty that the authorities wouldn’t choose to feed him into the gears of the criminal justice machine. I’ve personally seen many cases where prosecutors aggressively pursued charges in these kinds of ambush cases, on the theory that the purported defender in effect orchestrated a killing that didn’t have to happen.

Further, once the son is fed into those gears of the criminal justice machine the son faces the potential of the rest of his life in prison on a murder conviction. Best case, he’s acquitted and avoids prison, but only at the cost of every resource he has, or that he can beg, borrow, or steal for his legal defense.

Importantly, the defender has no control at all over whether he finds himself aggressively prosecuted, whether that prosecution is for legitimate or purely political reasons. His life is now in the hands of a stranger whose personal agenda might be wholly inconsistent with either a reasonable concept of justice or the defender’s best interests.

Stakes involved

And for what stakes were these risks incurred? What was actually at stake when the owner of this home placed her son’s life at risk and placed him in jeopardy of life in prison? Remember, the house was otherwise unoccupied, so absent the son being present for the ambush there was no threat to innocent persons. So what was threatened? A drained hot water tank? Is it really prudent to be willing to die or spend your life in prison over a drained hot water tank?

There are definitely circumstances when the use of deadly defensive force is worth even the most severe consequences, including even losing the physical fight and spending one’s life in prison. But that list of circumstances ought to be a pretty short list. For what it’s worth, I personally don’t have “defending drained hot water tank” on my list.

Make sure the stakes you’re fighting for are worth the risks of the fight, folks. Maybe you believe it’s fine to kill or die over a hot water tank. That’s your decision to make. All I can do is try to help you make an informed decision.

And for Pete’s sake, think these issues and scenarios through today. Because you won’t have time for thoughtful consideration when the flag flies.

Remember: You carry a gun so you’re hard to kill. Know the law so you’re hard to convict.


Attorney Andrew F. Branca
Law of Self Defense LLC

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[Featured image sourced from the Indianapolis Metropolitan Police Department.]


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