Self Defense in a posted establishment?

[TNTitan]

I asked this question in another thread, but it was a bit of a threadjack so I didn't want to continue there...

Here is a hypothetical scenario:

You walk into a restaurant with your family for dinner. The restaurant has a legally posted no-gun sign but you missed it. During dinner, a criminal presents a serious threat and you are forced to defend yourself and your family.

Topic of discussion: What are the legal ramifications of this encounter? Could you charged with a crime for carrying? Could you lose your HCP? Does the self defense clause exonerate you as Fallguy and Hexhead have stated earlier? Ignorance is no defense of the law, so to what end does the HCP holder need to go to ensure that he is carrying legally?

Edited September 11, 2009 by TNTitan

[willis68]

My advice, read the signs and if posted go elsewhere to avoid the problems you will run into

[TNTitan]

My advice, read the signs and if posted go elsewhere to avoid the problems you will run into

agreed, but in this scenario you dont see a sign, and only find out later that there is one and you missed it.

[BigPoppa]

I asked this question in another thread, but it was a bit of a threadjack so I didn't want to continue there...

Here is a hypothetical scenario:

You walk into a restaurant with your family for dinner. The restaurant has a legally posted no-gun sign but you missed it. During dinner, a criminal presents a serious threat and you are forced to defend yourself and you family.

Topic of discussion: What are the legal ramifications of this encounter? Could you charged with a crime for carrying? Could you lose your HCP? Does the self defense clause exonerate you as Fallguy and Hexhead have stated earlier? Ignorance is no defense of the law, so to what end does the HCP holder need to go to ensure that he is carrying legally?

IANAL, but it is my understanding, and what we instruct, that the following TCA section (often called the "omnibus" or "safe harbor" defense, would offer you some degree of protection in the scenario you suggest.

Basically, it is the State saying in light of the big picture of the circumstances, we will overlook or reduce the initial violation in favor of the greater good that was done.

Having said that, I encourage all of our students to continue to use discretion and good judgement.

39-17-1322. Defenses. —

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.

[willis68]

agreed, but in this scenario you dont see a sign, and only find out later that there is one and you missed it.

I would think if it is properly posted, you will see it if not that the business is not following posting properly so I wouldn't worry about it

[TNTitan]

Willis - I think you would be surprised as the situations where you might not be able to see a properly posted sign. It could be dark, or raining, or it could be like a packed restaurant on a Sunday morning in winter with 50 people jammed at the front of the restaurant obscuring the sign. Any number of possibilities. But thats not really the point. The reason for this scenario is not to focus on seeing the sign if posted, but rather dealing with the aftermath.

BigPoppa - that sounds more like it. I'd love to read some case law on that "safe harbor" defense as used here in TN.

[Bubba0031]

None of us want to ever be put in a situation where we have to use deadly force however in the unlikely and unfortunate event it were to actually happen I think the least of the problems would be whether or not the location it happened at was posted as a no carry location. The bottom line would be that hopefully you survived and it is better to be judged by 12 than carried by 6.

[TNTitan]

None of us want to ever be put in a situation where we have to use deadly force however in the unlikely and unfortunate event it were to actually happen I think the least of the problems would be whether or not the location it happened at was posted as a no carry location. The bottom line would be that hopefully you survived and it is better to be judged by 12 than carried by 6.

Well said. I think its safe to assume that any plaintiff attorney would use this against the HCP holder and try to paint him/her as a scofflaw.

Edited September 11, 2009 by TNTitan

[Guest Bill Lumberg]

I like how this has been modified. A question posited about carelessness (not reading the sign or not seeing the sign) followed by self defense is a lot better than one about intentional illegal behavior.

[TNTitan]

I like how this has been modified. A question posited about carelessness (not reading the sign or not seeing the sign) followed by self defense is a lot better than one about intentional illegal behavior.

modified? when were we discussing intentional illegal behavior?

EDIT: I see what you are saying now, thanks Lumberg.

Edited September 11, 2009 by TNTitan

[Guest FiddleDog]

I think if the prosecutor wanted to burn someone, they could charge you with criminal trespassing, and consider your use of the weapon in self defense as being used while during the commission of a crime. My gut tells me that you'd still be open to some sort of legal or civil action. But I'm no attorney.

[frontier737]

This is one of the best asked questions that I have seen here. For that I thank the OP.

And thanks to Big Poppa for a great answer with a TCA reference.

Edited September 11, 2009 by frontier737

[Guest Bill Lumberg]

Not this thread, but this topic and similar ones are the topics dujour. In several of them, willfully carrying in posted establishments is discussed. This thread more effectively askes the question, without involving illegal behavior in the equation.

modified? when were we discussing intentional illegal behavior?

[willis68]

Willis - I think you would be surprised as the situations where you might not be able to see a properly posted sign. It could be dark, or raining, or it could be like a packed restaurant on a Sunday morning in winter with 50 people jammed at the front of the restaurant obscuring the sign. Any number of possibilities. But thats not really the point. The reason for this scenario is not to focus on seeing the sign if posted, but rather dealing with the aftermath.

BigPoppa - that sounds more like it. I'd love to read some case law on that "safe harbor" defense as used here in TN.

The responsibility that I personally adhere to as a concealed handgun permit holder is to know where I am and am not allowed to carry. I put forth a great deal of effort educating myself on where it is allowed and where it is not. I think everyone who choses to carry should do the same, however in any event where my family is in danger the aftermath, or prosecution would be the least of my worries

[Guest Bill Lumberg]

I agree, Lumberg. This is a more effective way of exploring the question.

I like how this has been modified. A question posited about carelessness (not reading the sign or not seeing the sign) followed by self defense is a lot better than one about intentional illegal behavior.

[TNTitan]

This is one of the best asked questions that I have seen here. For that I thank the OP.

And thanks to Big Poppa for a great answer with a TCA reference.

Thanks for that! I did the best I could to paint a picture that I know has run across my mind more than once, and I suspect I am not alone.

The responsibility that I personally adhere to as a concealed handgun permit holder is to know where I am and am not allowed to carry. I put forth a great deal of effort educating myself on where it is allowed and where it is not. I think everyone who choses to carry should do the same, however in any event where my family is in danger the aftermath, or prosecution would be the least of my worries

Im right there with you Willis and I agree - HCP holders DO have an extra responsibility to educate themselves on the law and the rules of their surroundings.

For myself personally, my job involves taking clients to lunch and/or dinner daily, and sometimes I dont even know where we are going until I am already in transit or picking them up from their office/airport. I do this in multiple cities across the state and very often it is a group of businessmen/women in which I am engrossed in conversation as we approach the front door. It may be late at night in Memphis or on a rainy day in a crowded restaurant in Clarksville. My point of all this is to say that even with my best efforts, I might miss a sign or not see one or otherwise find myself carrying where I should not.

So I am faced with the proposition of just flat out not carrying while I'm working or possibly finding myself running afoul of the law which I DO NOT want to do.

Edited September 11, 2009 by TNTitan

[Guest Muttling]

As I understand it (and I've been wrong before)...

The OP's scenario paints two seperate issues from a legal perspective. The first being "was he in a position to legally use lethal force for his self defense." This question is irrespective of a posting on weapons. Lets be frank, the guy could be unarmed and in the struggle kick the attacker in the head. This constitutes a use of lethal force just as pointing a sidearm would.

The second issue is whether the defender comitted a crime by carrying the weapon. If the establishment is properly posted, I don't see as he has any defense to this charge and I'm pretty sure he'd be charged for doing so.

The fact that he needed the weapon for self defense doesn't nulify the fact that he was carrying it where he was not allowed to do so. There is no such "safe harbor." Additionally, ignorance of the law is NOT a defense against prosecution so his failure to observe a legally correct posting is his fault. His only hope is for an attorney to find some reason that the posting was not legally correct.

[Fallguy]

As I understand it (and I've been wrong before)...

The OP's scenario paints two seperate issues from a legal perspective. The first being "was he in a position to legally use lethal force for his self defense." This question is irrespective of a posting on weapons. Lets be frank, the guy could be unarmed and in the struggle kick the attacker in the head. This constitutes a use of lethal force just as pointing a sidearm would.

The second issue is whether the defender comitted a crime by carrying the weapon. If the establishment is properly posted, I don't see as he has any defense to this charge and I'm pretty sure he'd be charged for doing so.

The fact that he needed the weapon for self defense doesn't nulify the fact that he was carrying it where he was not allowed to do so. There is no such "safe harbor." Additionally, ignorance of the law is NOT a defense against prosecution so his failure to observe a legally correct posting is his fault. His only hope is for an attorney to find some reason that the posting was not legally correct.

Have you read 39-17-1322? That is exactly what it says. It says if you used the handgun in justifiable self-defense you shall not be charged or convicted of any violation under this part. This part meaning Part 13 weapons of Chapter 17, Title 39 Or in other words any 39-17-13XX law. Which includes 39-17-1359.

[jtluttrell]

http://www.tngunowners.com/forums/handgun-carry-self-defense/15780-legal-perspectives-use-deadly-force.html

bottom of this post

[Guest Muttling]

WOW. That exemption is quite an impressive one......

[1] There is an exception to this. Despite this language, you still get the protection of the self-defense law if you are carrying your firearm in a place where it is not allowed, such as a school or a restaurant that serves alcohol for on premises consumption, and you do actually use it in justifiable self-defense.

I was unaware and thanks for you two pointing it out. I still wouldn't carry where I was not allowed (too big a risk and I can just not give them my business instead), but if I find myself in the OP's scenario I have far better legal legs to stand on than I thought.

[TNTitan]

Very interesting/strange. Does anyone know if this has been tested in court?

[Fallguy]

Very interesting/strange. Does anyone know if this has been tested in court?

I only know of one court case where it has come up.

The orginal trial judge did dismiss the charge of carrying on school property because he felt it was in self-defense.

The state appleaed because of the judge's ruling and the appleate court said the trial judge could not determine himself at a pre-trial hearing that it was self-defense an ordered a new trial.

...at the new trial the guy changed his story and said he didn't actually display it in self-defense, so he was found guilty.

So it really wasn't 39-17-1322 that didn't hold up, it was the fact the a judge couldn't determine if it was self-defense in a pre-trial hearing. The appelate court also said the wording of 39-17-1322 was very stange.

[Guest 270win]

The sign is a misdemeanor fine violation. Self defense generally trumps misdemeanor weapons violations in most states, including Tennessee. If the shooting is clear cut self defense, such as a robbery, there is a good chance a prosecutor will not even bring it to trial. Many people who defend themselves when 'illegally' carrying are never charged for misdemeanor carrying a weapon or the like when there is a justifiable homicide on the table and it is cut and dry. I doubt you have anything to worry about over a sign, especially when the law is pretty clear about it in Tennessee.

[Guest Chip Holland]

Carrying your gun into a location that is posted is a misdemeaner but if you use it inside the location the law you will fall under this one;

39-11-611. Self-defense. —

(Law that allows you to use deadly force to protect yoursef and others)

( (1) Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force.

(2) Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity 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:

Notwithstanding means "in spite of" so 39-17-1322 will not apply if you are doing something illegal or in a place you do not have a legal right to be. Inside a posted location with a firearm is a place you do not have a legal right to be!

I will also say this. Everybody on here wants to have their rights respected. Right? Then what makes it okay for you to not respect someone else's rights. If someone posts a sign that says "No Guns" then you know that they do not want you to bring a gun inside. If you do then you are not respecting the rights of that person. You are not required to go to that location you just choose to go. I take my money where I (and my gun) am welcome.

[Fallguy]

Chip this has already been discussed and checked with several state legislatures.

39-17-1322 still applies, the use of "Notwithstanding" in the context of 39-11-611 means that 39-17-1322 still applies. I think it has to do with the fact there is a comma (,) after it.

Also for the record the parts you cite don't mean if you are violating the law, that you can't claim self-defense. It just means the no duty to retreat part does not apply. If they had intended for you not be able to defend youself period, it would have been under sub-part (e) where it list the situations where force is not allowed.