October 11, 2024
Can you really trust the advice from a Tennessee legislator on the use of deadly force?
Since Helene devastated parts of Tennessee and the southeast,
individuals, families and businesses have had to deal with robbers,
thieves and looters. These storm victims need and want to know what
level of force they can use to protect not only their lives but their
homes, lands, businesses, inventory, and personal property. Many think
that they already know the answer and are shocked to find out that they
are wrong.
The short answer is that deadly force
under Tennessee law can only be used to protect human life and then
only if there is an imminent fear or death or serious bodily injury.
Tennessee Code Annotated § 39-11-611. Non-lethal force can be used to
protect your home, lands, businesses and personal property but you
cannot use deadly force in Tennessee to protect those assets. Tennessee
Code Annotated § 39-11-614. Finally, although Tennessee has something
that some might classify as a “ castle doctrine”
it also prohibits the use of deadly force when used to protect the
home, lands, businesses or other personal property interests. Under
Tennessee law, if someone uses “deadly force” in an instance where it is
prohibited then such use could easily be charged as an assault,
aggravated assault or even a homicide – all with potential felony
charges much higher than the looter likely would have faced.
When Tennessee Firearms Association issued these reports to help
Tennesseans and particularly the storm victims understand that
Tennessee’s use of force laws may not be what they expected, some
Tennesseans apparently reached out to their elected Legislators for
clarification or confirmation. This is the story of one such contact.
On October 3, 2024, an individual who had received the Tennessee Firearms Association’s October 2, 2024, email blast
sent an email to his Tennessee state senator (a Republican serving
parts of the state that were impacted by Helene) with questions and with
a request that this Senator take action in 2025 to change Tennessee
law. Part of his email to his Senator stated:
Tennessee’s Legislature has tied the hands of victims by forcing them
to stand by without the ability to protect their homes, lands, or the
property from thieves, robbers, burglars and looters. To that extent,
the Republican controlled General Assembly has victimized the innocent
again. These laws should be changed so that citizens, even if not in an
emergency, can effectively defend themselves, their lands, their homes
and their properties from those who are willing to risk their lives to
engage in criminal activity.
It is hard for me to believe that a body that represents the people
would even consider this as an option, much less make it law. Please
make this your personal priority to change this legal condition in 2025.
Later on October 3, the Senator wrote back. However, the Senator’s
reply was largely non-responsive to the statements and requests of the
constituent. The Republican Senator’s initial reply stated:
Thank you for reaching out to me about this. I am not a lawyer but I
have taken a look at your concerns and have compared them to current
code. Copied below are the statutes referenced in your email with
highlighted portions relating to the use of force and the use of deadly
force.
[The Senator’s response did copy several sections of Tennessee’s
statutes that were addressed in the TFA’s reports but the Senator did
not comment on them]
The concerned Tennessee constituent responded to his Senator on October 7:
I’ve considered what you sent and highlighted. I’m not a lawyer
either, but my concern is that the law allows for self-defense, but not
protection of property.
Self-defense (human life), yes if ALL THE CONDITIONS are met. Defense of real estate or property – no.
Finally, on October 9, 2024, the Republican Senator responded in more
detail to the concerns that were raised by the constituent. It appears
that the Senator’s response may, in material respects, actually be a
response that the Senator received from the Legislature’s “legal
department”. The Senator’s response stated, in relevant part:
Copied below is the response I received from our legal department.
Best regards,
[Senator’s name omitted]
The presumption you have cited below is contained within the
self-defense statute. If [constituent name omitted] is inside his
residence and someone enters the residence and attempts to steal his
belongings, then yes the presumption would apply.
In response to his statement that the law does not allow for the
defense of property, I would point out that the protection of property
statute states in subsection (c) as follows:
39-11-614. Protection of property.
(a) A person in lawful
possession of real or personal property is justified in threatening or
using force against another, when and to the degree it is reasonably
believed the force is immediately necessary to prevent or terminate the
other’s trespass on the land or unlawful interference with the property.
(b)
A person who has been unlawfully dispossessed of real or personal
property is justified in threatening or using force against the other,
when and to the degree it is reasonably believed the force is
immediately necessary to reenter the land or recover the property, if
the person threatens or uses the force immediately or in fresh pursuit
after the dispossession:
(1) The person reasonably believes the other had no claim of right when the other dispossessed the person; and
(2) The other accomplished the dispossession by threatening or using force against the person.
(c)
Unless a person is justified in using deadly force as otherwise
provided by law, a person is not justified in using deadly force to
prevent or terminate the other’s trespass on real estate or unlawful
interference with personal property.
This means that if the person is justified in using deadly force to
defend themselves or others, then they are also justified in using
deadly force to defend their property.
It might be helpful for [constituent name omitted] to talk with his
district attorney general as to how these statutes are used in the
criminal justice system.
Any amendment to the law to allow the use of deadly force against
trespassers without a requirement of reasonable belief of imminent death
or serious bodily injury could have unintended consequences. [remainder
of response omitted]
There are several issues related to the Senator’s responses that
should be noted by Tennessean’s and that have already been frustratingly
noted by the constituent who forwarded this to TFA.
First, the Senator’s initial response on October 3, 2024, was
entirely unresponsive. It did not address the constituent’s written
concerns and questions. Further, it did not indicate what the Senator’s
position on this issue was. Finally, it did not state what the Senator
would or would not do in the next legislative cycle.
Second, the Senator’s response on October 9, 2024, appears to be not
the Senator’s position on this matter but instead the position of an
unidentified, unelected individual in the “legal department.” That
independently might be expected but the answer is misleading if not
simply wrong.
While the Senator’s October 9, 2024, email does correctly identify
one of three relevant statutes – Tennessee Code Annotated § 39-11-614.
However, it omits Tennessee Code Annotated § 39-11-611 and Tennessee
Code Annotated § 39-11-621 each of which were addressed in the
constituent’s initial email on October 3, 2024. All three of those
statutes must be considered collectively to answer the question “can a
Tennessean use deadly force to protect her home, her lands, her business
and/or other items of personal property?
Part of the problem is that the Tennessee Legislature has a proven
history of writing inconsistent and frequently conflicting statutes.
Even when this problem has been brought to the attention of the
Republican controlled Legislature over the last 15 years, these
ambiguities and conflicts are allowed to remain and, in some instances,
have been made worse with unconstitutionally vague amendments.
(Consider William Lamberth’s amendment to Tennessee Code Annotated §
39-17-1306 in Public Chapter 467 (2017)).
The Senator’s October 9, 2024, reply concludes:
This means that if the person is justified in using deadly force to
defend themselves or others, then they are also justified in using
deadly force to defend their property.
Thus, this Senator has advised a constituent that if the person is
faced with an imminent fear of death, serious bodily injury or grave
sexual abuse, that deadly force is not only justified to terminate that
threat to a human but it is also justified to defend property.
That is simply not the law nor is it a reasonable interpretation of a
series of statutes on the question of when is the use of “deadly force”
justified under Tennessee law. Tennessee law sets an unmistakable
threshold for the use of deadly force (including brandishment) and that
standard is set forth in Tennessee Code Annotated § 39-17-1311(b)(2).
That threshold to the use of deadly force ties the use to the necessity
of defending human life from an imminent threat of death or serious
bodily injury:
(2) Notwithstanding § 39-17-1322, a person who is not engaged in
conduct that would constitute a felony or Class A misdemeanor and is in a
place where the person has a right to be has no duty to retreat before
threatening or using force intended or likely to cause death or serious
bodily injury, if:
(A) The person has a reasonable belief that there is an imminent danger of death, serious bodily injury, or grave sexual abuse;
(B) The danger creating the belief of imminent death, serious bodily
injury, or grave sexual abuse is real, or honestly believed to be real
at the time; and
(C) The belief of danger is founded upon reasonable grounds.
The application of this statute has been addressed by the Tennessee
Court of Appeals in at least one reported decision – State v. Clifton,
880 S.W.2d 737 (Tenn. Crim. App., 1994). In that case, an individual
was being tried for homicide. The court summarized the facts, relevant
here, that the defendant was hired by a pawn shop owner to spend the
night randomly in the pawn shop apparently because of concerns of
burglary. The defendant was spending the night in the pawn shop when he
heard one or more individuals breaking in and that they were in the
pawn shop. He fired two warning shots into the ceiling and then a third
shot at about 5 feet high into a wall. The third shot apparently hit
one of the burglars who died outside. The defendant claimed it was
both self-defense and also defense of property. The court of appeals
rejected, as did the jury, the self-defense claim and also the claim
that deadly force was permissible under Tennessee law to protect
property.
The concern is that the Senator’s reply unequivocally states that
deadly force can be used to defend real or personal property if there is
imminent fear of death or serious bodily injury to a human – however,
the set of code sections provide otherwise. What the Senator’s
conclusion misreads is subsection (c) of Tennessee Code Annotated §
39-11-614 which makes clear that the use of deadly force must be
“justified … as otherwise provided by law” which means it is only
justified under Tennessee Code Annotated § 39-11-611(c) to defend human
life.
For example, if a crime victim is faced with a burglar and the
burglar both creates a threat of imminent death or serious bodily injury
to a human and also is attempting a theft or robbery, then deadly force
could be used to terminate the threat of death or serious bodily
injury. But, if the threat of death or serious bodily injury ends yet
the robbery or looting persists (for example, the looter or thief has
seized the items of personal property and is leaving), then deadly force
cannot be used. In reality, the statutory scheme only allows the use
of deadly force so long as necessary to protect human life – it never
justifies the use of deadly force to defend property.
Oddly enough, this example was part of a scene involving Denny Crane
several years ago when he was faced with an armed robber. In Denny
Crane’s example, had the mugger taken the watch and wallet and turned to
run before Crane shot, Crane would not under Tennessee law have been
justified in using deadly force.
We
have intentionally not identified the state Republican Senator
responsible for this bad advice – yet. We hope that the Senator will
reach out to both the constituent(s) and to the Tennessee Firearms
Association with a pledge to support the change in the law to allow
victims to defend their lives, their homes, their businesses and their
property by whatever means reasonably necessary. Indeed, it is not the
crime victim that potentially brings the issue of deadly force into the
formula but it is instead the criminal who would be knowingly choosing
to risk his life in order to rob, steal or loot another person’s assets.
In addition, we want to compliment the Tennessean who, having read the information distributed by TFA through its free email information system,
reached out to his Senator and took action to determine whether the
Senator agreed that the current law is wrong (he did not) and also
insisted that the Senator take action in 2025 to change the law.
This Senator is not the only problem because, if that were the case,
there are others who would be able to vote to fix this problem with
Tennessee law. The REAL problem is that the Republican leaders in the
Legislature and the apparent majority of Republican legislators in
Tennessee appear to be of the same disposition as this Senator – they do
not support your rights as a crime victim nor the clear requirements of
the constitution. In fact, Senator Joey Hensley and Representative Jay
Reedy filed SB601/HB510
that would have addressed this issue in the last legislative session.
No other Senator joined Senator Hensley as a co-sponsor. On Rep.
Reedy’s proposal, only Representatives Monty Fritts, Brian Richey, Susan
Lynn and Jody Barrett signed on as co-sponsors. The bill was killed by
the Senate Judiciary Committee when it sent the bill to “General
Subcommittee.” Why no other support from the supermajority of
Republicans? That is a question that each of them need to answer. For
those running for re-election in November, perhaps they need to answer
those questions NOW so that you will know how to vote.
What can you do?
Do as the individual in this real life example did – contact your
legislators and demand to know a) where they are on this issue and b)
what they plan to do in 2025 to address it. If you are fortunate enough
to get answers, please forward their responses to Tennessee Firearms
Association. |
