If someone breaks into my apartment, what are my rights?

[Fallguy]

I think you are misunderstanding the law. There may well be a presumption if you are trying to protect yourself. I contend there is no such presumption if someone is trying to get away or surrender.

The presumption is there regardless of what they are doing...they could be sitting at the table having a cup of coffee, as long as the unlawfully entered the house.

However if that was the case the DA might try and could overcome the presumption as The Rabbi said if the intruder lives or there were other witnesses. But...if you and the intruder are the only two in the room and the BG dies, the DA may have a hard time doing that depending on what you say.

[DaveTN]

The presumption is there regardless of what they are doing...they could be sitting at the table having a cup of coffee, as long as the unlawfully entered the house.

However if that was the case the DA might try and could overcome the presumption as The Rabbi said if the intruder lives or there were other witnesses. But...if you and the intruder are the only two in the room and the BG dies, the DA may have a hard time doing that depending on what you say.

I disagree. If what you are saying is correct; what you tell the DA would not matter. I need to see what part of the law you think gives you a green light to execute a criminal that is surrendering.

Disclaimer: I am not saying that is a bad idea; I am just saying that I do not believe Tennessee law allows you a free kill just because someone is in your home illegally.

[Fallguy]

There are basically two parts of the law relevant to what we are discussing...

T.C.A. 39-11-611©, that is the part where the law presumes you to be in fear of your life if the person unlawfully entered your house, etc...

and

T.C.A. 39-11-611(d), which list a group of people and circumstances that the presumtion does not apply to, a surrendering person is not among the list.

Text of Statutes..

39-11-611©

© Any person using force intended or likely to cause death or serious bodily injury within a residence, dwelling or vehicle is presumed to have held a reasonable belief of imminent death or serious bodily injury to self, family, a member of the household or a person visiting as an invited guest, when that force is used against another person, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, dwelling or vehicle, and the person using defensive force knew or had reason to believe that an unlawful and forcible entry occurred.

39-11-611(d)

(d) The presumption established in subsection © shall not apply, if:

(1)

The person against whom the force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder; provided, that the person is not prohibited from entering the dwelling, residence, or occupied vehicle by an order of protection, injunction for protection from domestic abuse, or a court order of no contact against that person;

(2)

The person against whom the force is used is attempting to remove a person or persons who is a child or grandchild of, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used;

(3)

Notwithstanding §

39-17-1322

, the person using force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(4)

The person against whom force is used is a law enforcement officer, as defined in §

39-11-106

, who enters or attempts to enter a dwelling, residence, or vehicle in the performance of the officer's official duties, and the officer identified the officer in accordance with any applicable law, or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

My advise.....don't break into anyone's house.....if you do you are taking your life into your own hands.

Sign on my door...

[The Rabbi]

I like that sign.

And I like that post. 100% correct and informative. A presumption is just that. It isn't an absolute, it can be overridden by particular circumstance. But in the absence of contravening evidence the presumption stands.

[Fallguy]

I like that sign.

And I like that post. 100% correct and informative. A presumption is just that. It isn't an absolute, it can be overridden by particular circumstance. But in the absence of contravening evidence the presumption stands.

Thanks, made it myself.

I have that one and one that is a little smaller and portrait instead of landscape.

I have both as a Word .doc file for any interested. Can send me a PM with e-mail address and I'll send them to you if you like.

[DaveTN]

And I like that post. 100% correct and informative. A presumption is just that. It isn't an absolute, it can be overridden by particular circumstance. But in the absence of contravening evidence the presumption stands.

A presumption can be overridden. Take for example the “presumption†that you are impaired at .08% BAC. That can be disregarded by a jury if they believe that you are not impaired even though you blew above a .08.

So back to my question… you shoot a kid (an unarmed kid that is clearly no threat to you) that is running away from you or trying to surrender; do you think this “presumption†will keep you out of prison?

And BTW this is a question not an argument; I don’t know the case law in Tennessee well enough to argue this. Common sense just tells me that you can’t execute a kid for making a stupid mistake.

[Fallguy]

I'm not arguing either, hope it doesn't seem that way.

I think we all agree that a presumption can be overridden.

Hard to answer your question, because I wouldn't shoot in that situation.

If there is a kid in my house in the middle of the day and he might be looking for one of my kids, am I going to start shooting first and asking questions later? No, but he will probably be scared enough not to enter my, or anyone else's house, without permission again.

If this same kids breaks into my house in the middle of the night and/or is moving towards a bedroom, he may very well aquire lead posioning.

Although I know this is not exactly what you are saying, but the law allows lots of things that others may find distasteful or even wrong such as hunting, carrying a firearm in the first place, drinking and so on.

[Guest Phantom6]

A presumption can be overridden. Take for example the “presumption†that you are impaired at .08% BAC. That can be disregarded by a jury if they believe that you are not impaired even though you blew above a .08.

So back to my question… you shoot a kid (an unarmed kid that is clearly no threat to you) that is running away from you or trying to surrender; do you think this “presumption†will keep you out of prison?

And BTW this is a question not an argument; I don’t know the case law in Tennessee well enough to argue this. Common sense just tells me that you can’t execute a kid for making a stupid mistake.

The point here is that though this kid is in your house either trying to escape (run away) or surrender he is no threat at this point at all and therefore your protection under the law is removed if you shoot (read execute him). If on the other hand this kid is coming down your hall toward you or aggressing on another member of your family elsewhere on the premises then you may fire for effect. Unless you "are in fear for your life" or "in fear of imminent, grave bodily injury"- where have we heard these words before class?- you can not shoot the individual. If you do, you risk being a guest of the state for three hots and a cot for the next 25 years or so.

There was a case recently in Powell (suburb of K-town) in which a man shot a home invader as the actor was leaving the residence. His saving justification was the fact that the actor was running toward the man's wife who was in the front yard and he did not halt when ordered to do so. The actor was DRT on the front lawn (single shot to the back of the skull- a damned fine shot, I must say) and the man faces no charges. Now the question must be raised at least in my mind, did the defender then instruct his wife to "take 12 giant steps" to her left and say 'OK you were standing right there were'nt you honey?' or did he simply change his own angle on the BG so as to be able to vector a round into the actor without compromising his wife's safety? DA's office and neighborhood witnesses say it was the latter. No fuss. No muss. Another one bites the dust.

[fishingjld]

does tn have the castle doctrine? i thought it was just florida.

[DaveTN]

does tn have the castle doctrine? i thought it was just florida.

Castle law is simply a legal concept. Most states have varying forms of the castle Doctrine.

Florida made a lot of noise when they removed their “Duty to retreatâ€. Tennessee does not have a duty to retreat.

[The Rabbi]

A presumption can be overridden. Take for example the “presumption†that you are impaired at .08% BAC. That can be disregarded by a jury if they believe that you are not impaired even though you blew above a .08.

So back to my question… you shoot a kid (an unarmed kid that is clearly no threat to you) that is running away from you or trying to surrender; do you think this “presumption†will keep you out of prison?

And BTW this is a question not an argument; I don’t know the case law in Tennessee well enough to argue this. Common sense just tells me that you can’t execute a kid for making a stupid mistake.

I don;'t understand what your issue is here. A kid (and the age of the intruder is irrelevant btw) clearly posing no threat cannot be shot. A kid clearly posing a threat can be shot. A kid where it cannot be determined readily whether he is posing a threat or not, can be shot. That's the presumption. It will be up to the DA to prove a reasonable person would not have felt threatened in that situation.

As for unarmed, I do not know who is armed and who is not. Neither do you. Neither does anyone who has not done a strip search on someone. So I presume everyone is armed.

[Marswolf]

I can't see the problem either. The law has nothing to do with people running away from you.

It just says that if you are in your home and anyone breaks in, you can assume they are there to harm you and so you can protect yourself with deadly force.

This is not a complex concept.

[DaveTN]

I don;'t understand what your issue is here.

Because I don’t have any.

I’m pretty sure I’m crystal clear on this.

[Guest canynracer]

...So back to my question… you shoot a kid (an unarmed kid that is clearly no threat to you) that is running away from you or trying to surrender; do you think this “presumption” will keep you out of prison?

....

loaded question...

what did the kid do before I got home?

rape, hurt, or kill my daughter?

was there anyone else home?

did he kill my dog, or even worse, kill my HIPPO?

poison my food?

I'd hold him till I worked it all out and the cops got there...would I shoot? no, not unless while I was chasing him, he did something to make me fear for my life...

Even if there was nobody home, I would give chase.

[DaveTN]

what did the kid do before I got home?

Posted as you on the forum. Watched your TV and drank all your beer.

was there anyone else home?

Nope.

My question was rhetorical anyway.

[Guest canynracer]

Posted as you on the forum. Watched your TV and drank all your beer.

how do you know this is ACTUALLY me posting?? and this dude NEVER has beer in the house!!!

Nope.

My question was rhetorical anyway.

not NICE Dave!!!

LMAO

[Fallguy]

My question was rhetorical anyway.

Ah....that explains a lot. I never studied rhetorical.

[Fallguy]

http://www.foxnews.com/story/0,2933,318930,00.html

SOUTH BRUNSWICK, N.J. — Local police said it was a typical holiday Grinch tale: A home was broken into on Christmas Eve, and wrapped presents were stolen off a kitchen table.

Little did they know the culprits were kids.

Authorities said Friday that a 9-year-old girl and a 5-year-old boy used a gift card to pick the lock on the back door of a home a block away. They then took about $200 in wrapped presents that were located on a kitchen table, including Hannah Montana and Jonas Brothers CDs.

The couple who lived in the home returned from some Christmas Eve shopping to find the house broken into, and the presents gone, South Brunswick police Detective Jim Ryan said.

One of the children's relatives who also lived in the neighborhood spoke with the couple and realized the gifts matched some mysterious extra presents the children appeared to receive on Christmas.

The relative contacted the children's mother, who got the truth out of them on Wednesday, and then contacted police.

"A 9- and 5-year-old would never be on our suspect list. For a burglary? Maybe for taking a bike or something like that, but not for a burglary," Ryan said.

The children's names were not released, and charges are not planned.

[Guest canynracer]

wow...just wow....

I think they would pretty much pee if someone would have walked in on them...

and they should get SOME charges...at least to teach them...

if my kids did that...they would not be able to walk or sit down for two weeks

[Mike.357]

if my kids did that...they would not be able to walk or sit down for two weeks

I feel ya here but these days you gotta watch that treatment. It is conceivable that charges might come at you and of course with those type of charges you could be saying goodbye to gun ownership.

It's a screwed up world we live in anymore.

[Guest canynracer]

I feel ya here but these days you gotta watch that treatment. It is conceivable that charges might come at you and of course with those type of charges you could be saying goodbye to gun ownership.

It's a screwed up world we live in anymore.

ummm, yeah, right, I guess I would just have to turn into a BG then and have a gun illegally...cause, I would WHOOP my kids ASSSSSSSSSSSSES!!!

in case people havent noticed....TIMEOUTS DONT WORK...

we got our azzes kicked growing up, and so did all of my friends...they are cops, firemen, and work in IT now...

kids now-a-days treat people like CRAP, have NO respect, and are breaking into houses and stealing, shooting, and running like crazy...

bunch of sheeeiiit

ok, im done

/end Rant

[Fallguy]

and they should get SOME charges...at least to teach them...

I agree...based on the fact they "picked the lock" It' not like they were visting their friend...saw the gifts and snached and grabbed...a little planning went into this.

Without going into any details....the police once told my daughter an a$$-whoopin' is not child abuse.