I had to pull my weapon - Questions regarding my decision and legal rights

[JunkiCosmonaut]

Get yourself a dash cam with panorama all around the inside of the car. Not that I'm giving legal advice but if you need to involve the police be the first to call, and always say up front YOU were attacked. Don't mention guns. Someone ripping your door open or banging on your car is an attack. They showed they meant to do you harm. 

Edit: a good peice of advice i was given (or atleast i think its good) if you can drive. Drive. If they get out of their car drive off. Through them around them whatever. Drive off. If they're trying to enter your vehicle report it as an attack. My girlfriend and I have a rehersed plan where if anything were to happen she records with my phone and calls 911 with hers. She says its an attack and where we are and keeps them up to date as long as im dealing with whatever  the "it" is. The other thing I think is important is to always act as though you're being filmed. If a jury watched this happen as movie who's side would they be on?

Edited January 1, 2021 by JunkiCosmonaut

[chances R]

Just want to emphasize that banging on a car is not justification for use of deadly force.  Sucks, but experts have expounded on this since the riots.  Violating the passenger compartment, trying to turn the vehicle over, boxed in where you can't escape is another matter.  Also must remember circumstances will vary, especially in a group.  

[BJB]

Please correct me if I’m wrong. But I was always taught that “if you feel like you are in imminent life threatening danger” you have the right to protect yourself 

[chances R]

57 minutes ago, BJB said:

Please correct me if I’m wrong. But I was always taught that “if you feel like you are in imminent life threatening danger” you have the right to protect yourself 

that is why you must remain calm and rational.  If someone is beating on your car, you phyically are not in danger of serious bodily harm or death.  Only your property is being damaged, that is what insurance is for.  Same as if someone is beating on your house or shouting out in your front yard.  I know it is ridiculous, but it is the criminal justice system.  It is not hard for a prosecutor to convince a jury your actions were not reasonable because you are safely tucked inside your vehicle from physical harm.  However, if your 'safety' is breached, windown broken out and they are trying to reach in and drag you or others out, or prying the door open, jerk it open, attempt to turn your car over, then that is considered at risk of serious bodily injury or death.  I am not an attorney, but do study, review this info almost daily and this is the general consensus of those that are connected with legal aspects of self defense law.  This is a great thread to study, evaluate, and prepare for similar situations so that you will have idea of how to react, and hopefully stay out of jail.

[Dirtshooter]

Mark, glad all went well considering how bad it could have went. Kudo's for telling this story for all to contemplate.

[pop pop]

Yes, thanks for the post. We should all think about this and make a plan if it happens to you. There are a lot of frustrated people now and ready to take (road rage)  action against anyone they think wronged them with a traffic violation. My wife was flipped off and blown the horn at , last week, for taking her right of way, which she had. I guess the other lady thought my wife should have let her go first, even though my wife was at the intersection first, and turning right, with no light,  and the other was turning left across in front of my wife.

Serious times and sometimes hard to turn the other cheek, but one simply must do it to stay our of harms way this day-in-time.  

[Swamp ash]

On 12/30/2020 at 1:24 PM, DaveTN said:

I disagree, my opinion is that attempting to break his window and forcibly entering his vehicle, justified the use of deadly force. But…. that’s just my opinion. Good thing he didn’t have to find out.

I understand, but the reason the other driver was reacting was from the OP's actions. Had this been unprovoked, then the OP may have had valid uncertainty about the matter. However, we have a duty to retreat whenever possible and avoiding a deadly encounter is best course of action.

I think the OP used great judgement in not discharging the weapon.

 

[Alleycat72]

19 minutes ago, Swamp ash said:

However, we have a duty to retreat 

 

Did the law change? I'm not retreating from my house if someone is trying to get in. Also OP always remember your car can be used as a weapon and/or a way escape.

[E4 No More]

25 minutes ago, Swamp ash said:

I understand, but the reason the other driver was reacting was from the OP's actions. Had this been unprovoked, then the OP may have had valid uncertainty about the matter. However, we have a duty to retreat whenever possible and avoiding a deadly encounter is best course of action.

I think the OP used great judgement in not discharging the weapon.

 

We do not have a duty to retreat, (stand your ground), but we do have a duty NOT to do anything to escalate a confrontation. The question that the prosecutor and subsequent jury to answer is, did the OP escalate, or even initiate, the confrontation by flipping the bird at the horn-honker?  I think that reasonable people would at most rebut receiving the finger with an FU of their own in return, and not see it as an escalation; therefore, they'd see trying to break into the vehicle as an unreasonable escalation in the horn-honker's response. Does anyone want to risk their freedom on that? 

When you illegally gain entry into a occupied vehicle you are "car-jacking" under the law which authorizes deadly force in this state. It is no different than you standing inside your house and flipping off someone through the window. It doesn't give that person cause to break into your house in return.

[KahrMan]

1 hour ago, E4 No More said:

We do not have a duty to retreat, (stand your ground), but we do have a duty NOT to do anything to escalate a confrontation. The question that the prosecutor and subsequent jury to answer is, did the OP escalate, or even initiate, the confrontation by flipping the bird at the horn-honker?  I think that reasonable people would at most rebut receiving the finger with an FU of their own in return, and not see it as an escalation; therefore, they'd see trying to break into the vehicle as an unreasonable escalation in the horn-honker's response. Does anyone want to risk their freedom on that? 

When you illegally gain entry into a occupied vehicle you are "car-jacking" under the law which authorizes deadly force in this state. It is no different than you standing inside your house and flipping off someone through the window. It doesn't give that person cause to break into your house in return.

Well said.

[leroy]

Late to the party .  Fools will always do foolish things.  Dont flip em off for being fools .  Blocking cars in and opening doors is a very dangerous thing.  I'm glad he came to his senses.  Everybody is guilty here.  Some more than others.  .

SIGH.  

sad leroy.  

[DaveTN]

We would all like to have a blueprint of what the law requires in any given situation to determine if we can legally use deadly force. We don’t have that. The closest we have is this… Deadly force is justified if a reasonable person believes deadly force is required to prevent death or great bodily harm.”. There are many variations on that wording.

We have these discussions/arguments/bickering all the time here. And that’s a good thing. People need to understand all the ins and outs.

Two of the most misunderstood terms I see in these discussions is usually “Castle Doctrine” and “Duty to Retreat”. The Castle Doctrine does not create a free fire zone; you can still be charged. And Tennessee doesn’t need to tell you that you don’t have a duty to retreat because as best I can tell; they never had had that as a requirement. Those laws are generally in states that at one time had a duty to retreat.

“Reasonable Person” is a Judge or jury, if you go to trial. They will decide if what you did was “reasonable”.

What you did will be judged by strangers that will make decisions that could alter your life and the lives of your family. The responding Officers, The investigators, The DA, and ultimately a Judge or Jury, that have hours or even months to decide what you had to decide in seconds will determine your fate.

Every case is different.

Times are changing. In the past when a criminal got killed committing a violent act; no one really cared. Nowadays if it’s a cop doing the killing; the left wants them charged even when they were clearly in danger. And we have seen that happen when it shouldn’t have. They will certainly apply that same standard to armed citizens killing criminals.

“It’s better to be tried by 12 than carried by 6” is a stupid statement. It’s better to not be charged, period. If you are charged with murder you will get exactly the amount of justice you can afford. That would financially destroy most of us.

[chances R]

36 states have a SYG law.  Only 5 of those states are absolute SYG which means reasonableness cannot be used to counter the fact of SYG; TN is not one of those states.  The physical battle is all important, but the legal battle where you are subject to decisions by others is just as important and very expensive as well.

[DaveTN]

Nevermind.

Edited January 3, 2021 by DaveTN

[E4 No More]

17 hours ago, DaveTN said:

We would all like to have a blueprint of what the law requires in any given situation to determine if we can legally use deadly force. We don’t have that. The closest we have is this… Deadly force is justified if a reasonable person believes deadly force is required to prevent death or great bodily harm.”. There are many variations on that wording.

We have these discussions/arguments/bickering all the time here. And that’s a good thing. People need to understand all the ins and outs.

Two of the most misunderstood terms I see in these discussions is usually “Castle Doctrine” and “Duty to Retreat”. The Castle Doctrine does not create a free fire zone; you can still be charged. And Tennessee doesn’t need to tell you that you don’t have a duty to retreat because as best I can tell; they never had had that as a requirement. Those laws are generally in states that at one time had a duty to retreat.

“Reasonable Person” is a Judge or jury, if you go to trial. They will decide if what you did was “reasonable”.

What you did will be judged by strangers that will make decisions that could alter your life and the lives of your family. The responding Officers, The investigators, The DA, and ultimately a Judge or Jury, that have hours or even months to decide what you had to decide in seconds will determine your fate.

Every case is different.

Times are changing. In the past when a criminal got killed committing a violent act; no one really cared. Nowadays if it’s a cop doing the killing; the left wants them charged even when they were clearly in danger. And we have seen that happen when it shouldn’t have. They will certainly apply that same standard to armed citizens killing criminals.

“It’s better to be tried by 12 than carried by 6” is a stupid statement. It’s better to not be charged, period. If you are charged with murder you will get exactly the amount of justice you can afford. That would financially destroy most of us.

And @chances R

Realizing that neither of us were police officers in this state, you and I must have had completely different Tennessee-certified HCP courses. In my course they made it clear that if someone breaks into your occupied home then deadly force is authorized regardless of whether or not they present a clear danger to you or yours. They even showed a video of a few scenarios that were presumably also state-certified. One of those scenarios was the homeowner entering his house to find a burglar who was presumably unarmed as he did not have a weapon in his hand. The scenario did not have the homeowner retreating out the door that he'd just entered, nor did it have him hold his fire because there was no weapon in the burglar's hand. The video showed the homeowner standing his ground, drawing his weapon, and shooting the burglar. They also showed a video of a car-jacking. The instructors and the videos emphasized that if someone is illegally entering your occupied home or occupied vehicle then it is presumed with statistics that they are there to do you serious harm, and deadly force is authorized.

Has the state-certified training changed since I took it? If not then the state cannot sanction an action with training and then convict you for doing it. Notice that I said convict rather than prosecute because the odd thing about this country is that both our federal and local governments seem unconcerned with prosecutorial misconduct or incompetence. In this case, the first thing I'd have my lawyer do is show the prosecutor the training video.

But even a clearly good shoot is still going to cost you a good amount of money unless you are comfortable navigating the aftermath without a lawyer.  I'm not that naïve. If I use deadly force my first call will be to the local law-enforcement, and my second will be to my lawyer. Having come incredibly close to killing someone, (justifiably), I know how upset that made me, so I can imagine how upset I'd be if I actually killed someone. There's no way that I'm going to talk to the LEO's in that condition without my lawyer present. 

[chances R]

43 minutes ago, E4 No More said:

And @chances R

Realizing that neither of us were police officers in this state, you and I must have had completely different Tennessee-certified HCP courses. In my course they made it clear that if someone breaks into your occupied home then deadly force is authorized regardless of whether or not they present a clear danger to you or yours. They even showed a video of a few scenarios that were presumably also state-certified. One of those scenarios was the homeowner entering his house to find a burglar who was presumably unarmed as he did not have a weapon in his hand. The scenario did not have the homeowner retreating out the door that he'd just entered, nor did it have him hold his fire because there was no weapon in the burglar's hand. The video showed the homeowner standing his ground, drawing his weapon, and shooting the burglar. They also showed a video of a car-jacking. The instructors and the videos emphasized that if someone is illegally entering your occupied home or occupied vehicle then it is presumed with statistics that they are there to do you serious harm, and deadly force is authorized.

Has the state-certified training changed since I took it? If not then the state cannot sanction an action with training and then convict you for doing it. Notice that I said convict rather than prosecute because the odd thing about this country is that both our federal and local governments seem unconcerned with prosecutorial misconduct or incompetence. In this case, the first thing I'd have my lawyer do is show the prosecutor the training video.

But even a clearly good shoot is still going to cost you a good amount of money unless you are comfortable navigating the aftermath without a lawyer.  I'm not that naïve. If I use deadly force my first call will be to the local law-enforcement, and my second will be to my lawyer. Having come incredibly close to killing someone, (justifiably), I know how upset that made me, so I can imagine how upset I'd be if I actually killed someone. There's no way that I'm going to talk to the LEO's in that condition without my lawyer present. 

E4 I will try and address several good issues you have raised.  First, it is entirely possible we had 'different' TN state HCP courses.  Best I recall, got my permit in '96.  The course has been modified by many instructors to include a lot of personal opinion, ad lib, shortened hours, etc.  Plus the state has had official changes implemented over the years, the next one effective Jan 1, 2021.  For many years the course was done by an official state mandated outline which left the door open for the above noted varibles.  Over the past 4 years or so the outline was changed to a PowerPoint presentation which has to be gone over in its entirety.  Minimal time for much ad lib.  This is a positive change which gives greater consistency in the program state wide and thus less room (note I didn't say no room) for confusion.  And don't forget changes in the law that can occur twice a year.

I have been a state instructor for the past 7 years and am still active.  In fact I have a course scheduled at Pellisippi State the 16th you are welcomed to attend and simply audit if you like.  I routinely attend and read multiple legal seminars and discuss many of these issues with other instructors as well.  So I do actively stay up to date, but am always open to discussion.

To my best recall, I do not remember any car-jacking videos by the state.  Maybe after I got my permit, but before I started instructing. The home breakin you refer to is still present.  The robber was armed with a golf club he picked up in the home, but really does not make any difference.  As you referenced, the law does state that it is assumed that someone breaking into your home is considered to be a threat of serious bodily injury or death, and one is certainly allowed to use deadly force.  You seemed to confuse and reference SYG with Castle doctrine, which are two entirely different and separate issues.  Also neither, as DaveTN noted, gives one a free shooting permit.  Castle doctrine for the home and auto are similar, but there are some differences, those points have been discussed previously in this post, but again the most important is that your passenger compartment has to be breeched, not withstanding a firebombing or trying to turn your car over.  Still much active debate in the gun community...as noted vehicle damage from banging on it...not a shootable situation, plus you can drive off.

Finally I pretty much agree entirely with your last paragraph.

 

[E4 No More]

40 minutes ago, chances R said:

E4 I will try and address several good issues you have raised.  First, it is entirely possible we had 'different' TN state HCP courses.  Best I recall, got my permit in '96.  The course has been modified by many instructors to include a lot of personal opinion, ad lib, shortened hours, etc.  Plus the state has had official changes implemented over the years, the next one effective Jan 1, 2021.  For many years the course was done by an official state mandated outline which left the door open for the above noted varibles.  Over the past 4 years or so the outline was changed to a PowerPoint presentation which has to be gone over in its entirety.  Minimal time for much ad lib.  This is a positive change which gives greater consistency in the program state wide and thus less room (note I didn't say no room) for confusion.  And don't forget changes in the law that can occur twice a year.

I have been a state instructor for the past 7 years and am still active.  In fact I have a course scheduled at Pellisippi State the 16th you are welcomed to attend and simply audit if you like.  I routinely attend and read multiple legal seminars and discuss many of these issues with other instructors as well.  So I do actively stay up to date, but am always open to discussion.

To my best recall, I do not remember any car-jacking videos by the state.  Maybe after I got my permit, but before I started instructing. The home breakin you refer to is still present.  The robber was armed with a golf club he picked up in the home, but really does not make any difference.  As you referenced, the law does state that it is assumed that someone breaking into your home is considered to be a threat of serious bodily injury or death, and one is certainly allowed to use deadly force.  You seemed to confuse and reference SYG with Castle doctrine, which are two entirely different and separate issues.  Also neither, as DaveTN noted, gives one a free shooting permit.  Castle doctrine for the home and auto are similar, but there are some differences, those points have been discussed previously in this post, but again the most important is that your passenger compartment has to be breeched, not withstanding a firebombing or trying to turn your car over.  Still much active debate in the gun community...as noted vehicle damage from banging on it...not a shootable situation, plus you can drive off.

Finally I pretty much agree entirely with your last paragraph.

 

I got my HCP after you did although I don't recall the exact year, I know that it was after we bought our old house in 2005, but not too long after, so the video could have certainly changed. I took the course at On Target, and having been a cop and a Marine with countless hours of shooting inside and outside of those organizations, I was pretty miffed that I was required to sit through some of the instruction. I clearly don't recall the golf club, but as you said it doesn't matter. What I remember of the car-jacking video was that it was a decent-looking blonde woman in a black sedan being jacked by a 20ish old white male.

Thank you for the invite. I would take you up on it just to meet another member and audit it to see the changes if it weren't one hell of a drive for me. When we write we are using only 7% of our communication skills. That makes it easy for people to misinterpret what is written and why I much prefer deep conversations kept to face-to-face interactions.

Perhaps I might be confusing the SYG with Castle: I was simply emphasizing that just because the homeowner entered the home to find the burglar that he wasn't required to retreat back out the door just because the burglar was already there. In other words, the burglar didn't break into an occupied house. 

What I was trying to point-out in my overall post was that the law is not always a mystery only to be revealed by a conviction via judge and jury as I interpreted DaveTN to have written. There are cases where it is very clear.

[DaveTN]

You have no duty to retreat. That is something different than thinking Castle Doctrine creates a free fire zone. If you walked in and found a burglar in your home, your Nest camera is running, or he is live streaming as some criminals do, and it records him throwing his hands in the air, surrendering, and telling you he is unarmed, don’t shoot. You kill him.

You will enter the courtroom with the presumptions given you under Castle Doctrine. The prosecutor will then blow those presumptions out of the water. That’s just my opinion though. I guess its possible the state would allow you to execute a surrendering burglar. But since they won’t let you kill a fleeing burglar; I doubt it.

But those are decisions everyone must make on their own. My own personal belief is that when a person is committing a forcible felony they should have no rights. And should be subject to being shot or killed by the victims or bystanders. Unfortunately most folks don’t agree. Especially when the offender is a friend, family member, or a child. Our founding Fathers were a bunch of tough old guys that are probably rolling over in their graves when they see their words being twisted to hold the rights of a criminal above those of the victims.

[Blitzen]

This thread is a little old but still interesting and pertinent to all who carry for personal protection. I feel once the other driver got agitated enough to leave his car and attempt to assault the driver that flipped him off escalated the situation to the point where he put himself in danger of bodily harm. Getting flipped the bird I would not think gives you the right to inflict bodily harm.  The old school days of getting into a fist-a-cuff are long gone. Flipping the bird that escalates you into a self defense shooting could cost you in civil court however. I’ve flipped the bird very few times in my life and every time thought it was stupid and wished I hadn’t. If you carry you have to keep a cool head. As everyone has pretty much said you handled the situation well except for the initial escalation. I’ve read where most assaults are stopped before they go to far once the victim pulls a sidearm. Looks like this is a classic example of that. Thankful you weren’t hurt and did not have to use deadly force. Man it was close! Thanks for posting! 
 

Edited January 9, 2021 by Blitzen
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[midtennchip]

THIS IS NOT LEGAL ADVICE!!!!!!!!

Sorry to be late on this, but I will chime in.  First, I hate the "Stand Your Ground" and "Castle Doctrine" monikers, mainly because every state's laws are different and the caselaw develops differently.  Nevertheless, people tend to lump them all together because they use the same words or names.

To the OP, lots of good analysis so far.  However, under TN law, I do not believe flipping the bird is being an aggressor in the situation (certainly not smart and should be avoided, but doubt it rises to the level of "provok[ing] the other individual's use or attempted use of unlawful force" -- that's the TN definition).  Yes, on some level, you are "provoking" a reaction, but I don't many people would say that jumping out of the car and beating on the window (much less, opening the door to get to you) would be the reasonably expected result of flipping the bird.  Obviously, a Prosecutor could make that argument and a jury might agree, but the idea of provocation is premised on the idea of reasonably equivalent force (i.e., you punched him, he swung back and you pulled the gun to stop the fight).

Where things are getting more complicated is the ever-changing environment of what constitutes reasonable belief of imminent death or serious bodily injury.  The past year has created many new situations (certainly more frequent) and there has been a good deal of discussion in legal circles about what now constitutes that reasonable belief to justify self-defense.  I would have said a year ago that someone attempting to break into the car would almost certainly justified pulling the gun (and using it, for that matter).  Today, it is more questionable.  Some of us would say, "I am more concerned now than ever" because we've seen it.  However, on the flip side, we've seen videos of all sorts of encounters that looked very dangerous that did not end in injury at all.  So, there's where the complication arises. 

There are two (2) things that concern me in the OP's situation:

    1.  the perp did not have a visible weapon and did not appear to be reaching for one until OP pulled his gun;  and

    2.  the act of pulling the gun (not shooting, but just pulling) is a criminal act unless justified. 

I only point out #2 to remind everyone that even pulling a gun has to be justified.  I point out #1 because it goes to the issue of "reasonable belief."  Because this was in a very public place, there were likely many witnesses.  Some may see the situation very differently, particularly when asked "did you think the perp was threatening death or serious bodily injury?"   We tend to focus on our own belief (and rightly so because the statute says to do that), but in real practice, the witnesses will have a very real contribution to what the jurors think about your "reasonable belief."

Unfortunately, none of those get to go through all of those thoughts in the heat of such a situation.  Had I been the OP, I fear I would have pulled the trigger.  It amazes me he didn't.  Glad for him he didn't, but I wonder how many of us (under the conditions described) would have been a patient in pulling that trigger.

Overall, I applaud the OP in his handling (at least AFTER he flipped the bird -- don't do that :)).  In this day and age, avoid confrontation as much as absolutely possible.  Sometimes you can't, but as a gun owner, you HAVE to avoid it until you can't.  The cost (even if you aren't prosecuted) is too high.

[m16ty]

On 1/1/2021 at 6:23 PM, BJB said:

Please correct me if I’m wrong. But I was always taught that “if you feel like you are in imminent life threatening danger” you have the right to protect yourself 

That is true. Keep in mind though, you may also have to convince a jury you were in imminent fear for your life. At the end of the day, it's not so much what you think, it is what a jury would likely think.