Self defense while intoxicated?

[hot_of_a_woddya]

So to start off I am aware that it is illegal, a misdemeanor, to carry a firearm while intoxicated in TN. I always observe this law, however, something happened on Saturday night that really got me thinking.

 

Saturday night I was out getting drinks with co-workers, unarmed. I was by no means plastered, but I was feeling the effects. I was with one male and one woman. A homeless man stopped us as we were walking along and put a hallmark card in the hand of the male and the female co-worker. The girl kept walking, me and the guy stopped to talk to him for a moment. The guy handed him a $5 and then tried to bid him good day, but as soon as the money was in his hand he turned around and started yelling at the girl. He said "That ain't free b****" and started walking after her very aggressively, calling her all sorts of derogatory names and threatening to "teach her a lesson". Me and the guy got in between him and the girl and tried to talk him down. He kept going, and continued to call the girl derogatory words that don't need to be repeated. The girl finally had enough and told him to shut up. As soon as she said this he pulled out a knife and wielded it saying he just got out of jail and didn't mind to go back. 

Fortunately there were other people there, I was able to pull the girl back, my friend came with me, and he lost interest in us. However, that got me thinking. What if instead of out in the open we were in an alley? What if he wasn't interested in making a show and immediately went for the kill? 

Obviously no one here can recommend anyone else break the law. I'm asking, hypothetically if, in that situation I was armed and defended myself would I face any charges other than the misdemeanor carrying while intoxicated? Can you have any right to defend yourself if you're intoxicated and breaking the law by carrying?

TN law 39-11-611 reads as follows, making me think that there is no way to justify self-defense while intoxicated, at least in public.

Quote

     (3)  Notwithstanding § 39-17-1322, the person using force is engaged in an unlawful activity or is using the dwelling, business, residence, or occupied vehicle to further an unlawful activity;

 

However, I found an interesting case, where it appears that the condition of intoxication does not revoke the right to self-defense, but instead requires that one attempt to retreat before employing force. If there is anyone here who is more familiar with law and legality to expand upon that, that would be awesome.

 

http://www.tsc.state.tn.us/press/2017/11/21/supreme-court-reviews-use-self-defense-when-engaged-unlawful-activity

http://www.tsc.state.tn.us/courts/supreme-court/opinions/2017/11/21/state-tennessee-v-antoine-perrierInsert other media

Edited November 13, 2018 by hot_of_a_woddya

[Omega]

I don't know the exact wording, but if it's a true SD event, I don't think they will charge you for the weapon.  A guy, felon, defended a convenience store clerk against an armed robber a few months ago.  He was not charged for possession even though he was a felon.

[Oh Shoot]

In TN, the same condition of "reasonable fear of imminent death or serious injury" is the same, drunk or sober. Your call, then LEO's on scene,  then DA's, ultimately perhaps a jury's.

Also, after a justifiable defense shooting, one is exempt from any other charges under the section, such as possession with intoxicated, possession without a permit, whatever.

- OS

 

Edited November 13, 2018 by Oh Shoot

[DaveTN]

39-17-1321. Possession of handgun while under influence -- Penalty.
(a)  Notwithstanding whether a person has a permit issued pursuant to § 39-17-1315 or § 39-17-1351, it is an offense for a person to possess a handgun while under the influence of alcohol or any controlled substance or controlled substance analogue.
(b)  It is an offense for a person to possess a firearm if the person is both:
(1)  Within the confines of an establishment open to the public where liquor, wine or other alcoholic beverages, as defined in § 57-3-101(a), or beer, as defined in § 57-6-102, are served for consumption on the premises; and
(2)  Consuming any alcoholic beverage listed in subdivision (b)(1).
(c) 
(1)  A violation of this section is a Class A misdemeanor.
(2)  In addition to the punishment authorized by subdivision (c)(1), if the violation is of subsection (a), occurs in an establishment described in subdivision (b)(1), and the person has a handgun permit issued pursuant to § 39-17-1351, such permit shall be suspended in accordance with § 39-17-1352 for a period of three (3) years.

--------------------------------------------------------------------------

39-17-1322. Defenses.
(a)  A person shall not be charged with or convicted of a violation under this part if the person possessed, displayed or employed a handgun in justifiable self-defense or in justifiable defense of another during the commission of a crime in which that person or the other person defended was a victim.
(b)  A person who discharges a firearm within the geographical limits of a municipality shall not be deemed to have violated any ordinance in effect or be subject to any citation or fine the municipality may impose for discharging a firearm within the limits of the municipality if it is determined that when the firearm was discharged the person was acting in justifiable self-defense, defense of property, defense of another, or to prevent a criminal offense from occurring.

------------------------------------------------------------------------

In STATE OF TENNESSEE v. ANTOINE PERRIER there was no self defense.

Edited November 13, 2018 by DaveTN

[Cruel Hand Luke]

It would be so much easier if we simply had something in TN state law similar to Pennsylvania (OK this may be the ONLY time I'll ever utter those words...) where you can carry while drinking as long as you are below the legal limit to drive. And still somehow they don't have wild drunken gunfights in bars in Pennsylvania. One would think that if the Pennsylvania Quakers can get on board with that then surely the bible belt Baptists can get on board with something like it. 

 

(Full disclosure....I'm arguably a closet Baptist attending a Methodist church)

Edited November 13, 2018 by Cruel Hand Luke

[DaveTN]

32 minutes ago, Cruel Hand Luke said:

It would be so much easier if we simply had something in TN state law similar to Pennsylvania (OK this may be the ONLY time I'll ever utter those words...) where you can carry while drinking as long as you are below the legal limit to drive. And still somehow they don't have wild drunken gunfights in bars in Pennsylvania. One would think that if the Pennsylvania Quakers can get on board with that then surely the bible belt Baptists can get on board with something like it. 

He said “I was by no means plastered, but I was feeling the effects” so he was probably above a .08 BAC. Just like with DUI, most folks have no idea what a .08 feels like.

If the use of deadly force is justified; it shouldn’t matter if you are intoxicated or not.

EDIT: After thinking about it, being intoxicated might make you unable to articulate the justification for the use of deadly force.

Mixing guns and alcohol is never a good idea. And carrying while you are drunk can get you arrested and result is losing your HCP. But I don’t see how being drunk would be an issue with criminal charges unless you weren’t justified in the use of deadly force.

Edited November 13, 2018 by DaveTN

[Erik88]

44 minutes ago, Cruel Hand Luke said:

It would be so much easier if we simply had something in TN state law similar to Pennsylvania (OK this may be the ONLY time I'll ever utter those words...) where you can carry while drinking as long as you are below the legal limit to drive. And still somehow they don't have wild drunken gunfights in bars in Pennsylvania. One would think that if the Pennsylvania Quakers can get on board with that then surely the bible belt Baptists can get on board with something like it. 

 

(Full disclosure....I'm arguably a closet Baptist attending a Methodist church)

It's also legal in Florida and Georgia to have a drink or two while armed. 

I could be wrong but my understanding is that even 1 sip in TN could result in arrest and loss of carry permit.

Edited November 13, 2018 by Erik88

[DaveTN]

30 minutes ago, Erik88 said:

It's also legal in Florida and Georgia to have a drink or two while armed. 

I could be wrong but my understanding is that even 1 sip in TN could result in arrest and loss of carry permit.

Correct, unless there is case law. “Under the influence” is different than the .08 which is a presumption you are impaired. From what I see there is no legal limit, and no requirement for the Officer to give you any tests. I would guess if charges were filed this would come down to a Judge or jury listening to both sides and making a decision.

Like the carrying past a sign controversy, it would be interesting to know how many times this charge has been used when it wasn’t just an add-on stemming from other criminal acts.

 

[Oh Shoot]

3 hours ago, Erik88 said:

....

I could be wrong but my understanding is that even 1 sip in TN could result in arrest and loss of carry permit.

The loss of permit requires being "under the influence" AND that condition happening in a place open to the public that serves booze, presumably whether you consumed it in that place or not.

Technically, the "one sip" is a violation but to the point of "under the influence"? Well, that's a subjective determination, not objective like a BAC would be. 

- OS

[walthermitty]

Want better laws?

Support Tennessee Firearms Association: https://tennesseefirearms.com/

[hot_of_a_woddya]

On 11/12/2018 at 11:45 PM, Omega said:

I don't know the exact wording, but if it's a true SD event, I don't think they will charge you for the weapon.  A guy, felon, defended a convenience store clerk against an armed robber a few months ago.  He was not charged for possession even though he was a felon.

Is there a link to this case, I'd be highly interested in reading it.

[Fourtyfive]

So if you lose your permit you could still have one in your vehicle regardless?

[Omega]

5 hours ago, Fourtyfive said:

So if you lose your permit you could still have one in your vehicle regardless?

I think it depends on why you lost your permit.  Most reasons are because you can't own a gun, but if it just expires or something I don't see why not.

[Omega]

9 hours ago, hot_of_a_woddya said:

Is there a link to this case, I'd be highly interested in reading it.

This is the case I was referring to, I didn't follow the entire thing but at the time I don't recall the guy being charged down the road. 

http://concealednation.org/2015/06/convicted-felon-kills-armed-robber-potentially-avoids-gun-charge/

[chances R]

5 hours ago, Fourtyfive said:

So if you lose your permit you could still have one in your vehicle regardless?

IMO yes.  The statue deals with the permit in regard to a violation.  However, alcohol consumption will in all likelihood complicate the investigation and your defense.  In turn, expect a corresponding increase in your legal fee.

[Fourtyfive]

Just saying, if you weren’t driving when you lost your permit by intoxicction, you could still carry in your vehicle.

[Oh Shoot]

12 minutes ago, Fourtyfive said:

Just saying, if you weren’t driving when you lost your permit by intoxicction, you could still carry in your vehicle.

DUI would nuke your permit for a while because it's a Class A Misdemeanor. However, neither a DUI nor losing your permit due to public intoxication would affect your right to own firearms, so neither would prevent you from continuing to carry in your vehicle.

It's perhaps noteworthy to mention that an alcohol related conviction will make you flunk the background check in TN for a year if purchasing a new gun.

- OS

Edited November 23, 2018 by Oh Shoot
clarity, I hope