Self Defense and 39-17-1322

[Fallguy]

As some may have noticed, how T.C.A. 39-17-1322 applies to self-defense has come up in a couple of recent topics as well as in the past and also on other boards I'm on.

So I have just sent an e-mail to my State Rep, that has helped me with legal questions when it comes to the T.C.A. in the past.

Here is what I sent.

Representative McDaniel,

Thank you for you help in the past in clarifying questions about Tennessee Law. I have another legal question for you. Perhaps you can answer it yourself, if not I would like to request you submit it to the Attorney General for his opinion.

Does the wording of “Notwithstanding § 39-17-1322†as used in T.C.A. 39-11-611((1), T.C.A. 39-11-611((2) and T.C.A. 39-11-611(d)(3) mean the protection from prosecution afforded under T.C.A. 39-17-1322, is no longer valid?

Thank you for any help.

Respectfully,

(Contact info removed from post)

So we'll see what this may find out for us.

Just for background for those that may not have followed this 39-17-1322 says...

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.

Where it says "this part" it means Part 13 or Chapter 17 of Title 39 of the T.C.A. Which basically means any law that starts 39-17-13xx. So even though it may otherwise be illegal to possess, display or use a handgun in certain circumstances under Part 13, it would not be illegal if you possessed, displayed or used the handgun for self-defense or defense of another.

However the new self-defense law would seem to remove this protection.

39-11-611 Self Defense

(a) As used in this section, unless the context otherwise requires:

(1)

“Curtilage†means the area surrounding a dwelling that is necessary, convenient and habitually used for family purposes and for those activities associated with the sanctity of a person's home;

(2)

“Dwelling†means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, that has a roof over it, including a tent, and is designed for or capable of use by people;

(3)

“Residence†means a dwelling in which a person resides, either temporarily or permanently, or is visiting as an invited guest, or any dwelling, building or other appurtenance within the curtilage of the residence; and

(4)

“Vehicle†means any motororized vehicle that is self-propelled and designed for use on public highways to transport people or property.

( (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:

(A)

The person has a reasonable belief that there is an imminent danger of death or serious bodily injury;

(

The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and

©

The belief of danger is founded upon reasonable grounds.

© 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.

(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.

(e) The threat or use of force against another is not justified:

(1)

If the person using force consented to the exact force used or attempted by the other individual;

(2)

If the person using force provoked the other individual's use or attempted use of unlawful force, unless:

(A)

The person using force abandons the encounter or clearly communicates to the other the intent to do so; and

(

The other person nevertheless continues or attempts to use unlawful force against the person; or

(3)

To resist a halt at a roadblock, arrest, search, or stop and frisk that the person using force knows is being made by a law enforcement officer, unless:

(A)

The law enforcement officer uses or attempts to use greater force than necessary to make the arrest, search, stop and frisk, or halt; and

(

The person using force reasonably believes that the force is immediately necessary to protect against the law enforcement officer's use or attempted use of greater force than necessary.

As you see sub-parts ((1), ((2) and (d)(3) all say "Notwithstanding § 39-17-1322"

[strickj]

That could mean allot of things.Lets hope it only applies to criminal acts ie drug deals..

If not it could be a backwards step

[Guest GLOCKGUY]

i to would like to know his answer to this

[Fallguy]

If not it could be a backwards step

FWIW, some did think it was a step backwards. Before the "new" self-defense law passed, you already did not have to retreat in TN and were presumed to be in fear of your life or serious bodily harm when you were within your residence.

I understand not wanting to allow the guy at the crackhouse to claim self-defense when he shoots and kills someone over a deal gone bad, but as it is worded it appears to broad.

Depending on the answer we get......this is toward the top of my "wish list" to address when we get a new Speaker and/or a more gun friendly legislature.

[strickj]

Yup,I liked how your worded it in another thread about being illegally parked

[Guest 270win]

I'm not a lawyer, but I think you are still covered by the Safe Harbor Law in self defense, such as folks who keep a gun in the glovebox without a permit, but have to use it a legal self defense shooting.

I do find it odd that the Safe Harbor Law only covers handguns in public, not long guns.

I highly doubt, though, that a prosecutor is going to go after Jimmy who lives in the Smokey Mtns and keeps his 30-06 loaded (appears loaded long guns illegal mostly in public) behind the seat of his pickup and has to use it for self defense.

[Fallguy]

I still hope to hear from my Rep and/or the AG on this, but after thinking on it some more. I wonder if we have all (or me anyway) have been reading it wrong.

I talked in another thread how commas(,), semi-colons(, colons( the words (and), (or), (if) all can make a big difference in the way a law reads and what means.

On those parts of the self-defense law that mention 39-17-1322 they have a a comma(,) after "Notwithstanding § 39-17-1322" That comma may mean that 39-17-1322 is not affected by the rest of the paragraph or that the rest of it doesn't affect 39-17-1322, however you want to look at it.

Razorback I agree that in 99% of the cases a DA is not liable to prosecute anyone if they had or used a gun in self-defense that they otherwise should not have had or had it where they shouldn't have. But I would just like clarification on it. Because if they can it would be something to keep in mind.

Also....I admit I didn't know that loaded long guns transported in your vehicle were legal in the states surrounding TN till you mentioned that in another post. That is another thing on my "wish list" for TN.

[Fallguy]

I just got a message back from my Rep. It appears I was right about the comma meant together with the first part.

Here is what he said....

Self-defense under § 39-11-611 is only available to a person who is not engaged in unlawful activity at the time. § 39-17-1322, would appear to prohibit prosecution of someone under the gun laws if they were engaged in self defense at the time. That prohibition would seem to apply even if the person was engaged in unlawful activity. For example, if a person had gun on school grounds illegally, and then used it in self-defense, he could not be prosecuted for having a gun on school property. That is inconsistent with the concept that you cannot claim self-defense if you were acting unlawfully at the time. Thus the "notwithstanding § 39-17-1322" language had to be put in § 39-11-611 in order to make them consistent.

So the protection under § 39-17-1322 is still valid as long as you are acting lawfully when you engage in self-defense.

Basically 39-17-1322 only protects you from the "gun laws".

In the new self-defense law normally you can not claim self-defense if you are acting "unlawfully" period, but with the "Not withstanding 39-17-1322," clause if you are only violating a law under 39-17-13xx you can still claim self-defense.

So the phrase some of us were worried about is actually needed...it means despite what the rest of the sub-part of 39-11-611 says...39-17-1322 still applies!

[molonlabetn]

That's good news.

[KahrMan]

Fallguy,

Thanks for all the work you put in that helps everybody have a better understanding of the laws. It is really appreciated.

[Guest db99wj]

So just to be clear, If I am in a restaurant that serves alcohol, and I have my gun concealed, (not that I would do that, because that is illegal, and it is safe because it is a gun free zone), and a BG comes in with a shotgun, my life or my families life is in danger, I pull my hnndgun, clearly as self defense, I will not or can not be prosecuted.

[molonlabetn]

That's how this clarification seems to indicate this provision was intended, yes.

[Bigiron]

If you want to know how to interpret a law, just ask king Naifeh what he wants it to be. That way you can avoid lawyers, elected representatives, and the taxpayer/voter.

[Marswolf]

Good deal Fallguy.

I knew Steve McDaniel before he became a rep.Seemed like a good guy.

I talked to Ron Ramsey the other day and mentioned the AG's opinion on parks. Apparently several people have questioned it. Basically there is nothing to be done right now until we get another AG. And the Senate will continue to pass good new gun laws, but you may as well expect the House to continue to kill them until some way is found to get rid of Darth Naifeh.

[Fallguy]

So just to be clear, If I am in a restaurant that serves alcohol, and I have my gun concealed, (not that I would do that, because that is illegal, and it is safe because it is a gun free zone), and a BG comes in with a shotgun, my life or my families life is in danger, I pull my hnndgun, clearly as self defense, I will not or can not be prosecuted.

You will not be charged with having a handgun in place that serves alcohol for onsite consumption under 39-17-1305, correct.

Good deal Fallguy.

I knew Steve McDaniel before he became a rep.Seemed like a good guy.

I talked to Ron Ramsey the other day and mentioned the AG's opinion on parks. Apparently several people have questioned it. Basically there is nothing to be done right now until we get another AG. And the Senate will continue to pass good new gun laws, but you may as well expect the House to continue to kill them until some way is found to get rid of Darth Naifeh.

I have talked with Steve a few times myself...he really is a good guy. I am very lucky to have him as my Rep and will do what I can to keep him in Nashville.

I agree the AG is not going to change his opinion, but with so many people questioning it a judge wouldn't look ridiculous if he dismissed the charges. Of course someone would have to be charged first and it would be a gamble, so I doubt any of us are going to be the test case...on purpose anyway.

[Fallguy]

That's how this clarification seems to indicate this provision was intended, yes.

Yep the wording was intended to keep the protection of 39-17-1322 in place.

[waynesan]

While you may not be charged or prosecuted, could you still lose your Handgun Carry Permit?

[Fallguy]

While you may not be charged or prosecuted, could you still lose your Handgun Carry Permit?

Here is the law on when the state can Revoke or Suspend a HCP.

39-17-1352 Suspension or revocation of license.

(a) The department shall suspend or revoke a handgun permit upon a showing by its records or other sufficient evidence that the permit holder:

(1)

Is prohibited from purchasing a handgun under applicable state or federal law;

(2)

Has not accurately disclosed any material information required by § 39-17-1351;

(3)

Poses a material likelihood of risk of harm to the public;

(4)

Has been arrested for a felony involving the use or attempted use of force, violence or a deadly weapon or a felony drug offense;

(5)

Has been convicted of a felony;

(6)

Has violated any other provision of §§ 39-17-1351 — 39-17-1360; or

(7)

Has at any time committed an act or omission or engaged in a pattern of conduct that would render the permit holder ineligible to apply for or obtain a permit under the eligibility requirements of § 39-17-1351.

So since you would have broken no law someone would have to try and prove sub-part (a)(3) and IMO defending oneself no matter where the location would not constitute that.

Fortunately TN is a shall issue state with the issuing authority being on the state level. Permit holders may have to be more careful in the states that are may issue and/or the permit is issued by a local authority

Edited April 7, 2008 by Fallguy

[Guest Roscoe]

Sorry to be late to this discussion--

It appears completely clear that the language in 39-11-611 referring to 39-17-1322 was added for the express purpose of avoiding prosecutorial misuse of 39-17-1322 to circumvent the defenses provided by 39-11-611. They are different animals, and this kind of statutory revision is common when it's necessary to keep the apples separate from the oranges. 39-11-611 provides a defense to criminal charges of homicide, assault, etc, etc, while 39-17-1322 provides a defense ("a" defense, not the "only" defense, e.g., one can acquire the permit) to a criminal charge of going heels. 1322 is much more restrictive as a defense than 611, but they are designed to address totally different circumstances.

I've included the language from the Sentencing Commission's comment on 39-11-611 as revised, which includes the old version of 39-11-611 sans reference to 39-17-1322. The revision including the cross-reference as shown now became effective in May 2007. A quick look on Westlaw shows that there haven't been any appellate cases interpreting 39-17-1322 in a criminal context. All is well on this one.

COMMENTS OF THE TENNESSEE SENTENCING COMMISSION

This section codifies much of the common law doctrine of self defense. The defense is applicable to the use or threatened use of force and to both ordinary force and deadly force. Threats are included because under some circumstances they constitute offenses.

Subsection (a) allows the justification of self defense to persons who reasonably believe they are imminently threatened with force or are actually attacked and who react with the force reasonably necessary to protect themselves. The test of "reasonable belief" places the emphasis on the defendant's reliance upon reasonable appearances rather than exposing the defendant to the peril of criminal liability where appearances were deceiving and no actual danger existed. The test is threefold: the defendant must reasonably believe he is threatened with imminent loss of life or serious bodily injury; the danger creating the belief must be real or honestly believed to be real at the time of the action; and the belief must be founded on reasonable grounds. Under this section, there is no duty to retreat, which changes Tennessee law.

Subsection ( is a restatement of a prior Tennessee statute which created a presumption that a person using force against an intruder in the residence held a reasonable fear of imminent death or serious injury.

Subsections ©, (d) and (e) are restrictions to the defense. Subsections © and (d) continue the traditional rule that the defendant claiming justification should be free from fault in bringing on the necessity of using force. Subsection © recognizes that persons who consent to the force used against them are prohibited from utilizing self defense in responding to that use of force. Examples would be mutual combatants or participants in contact sports. The defense, however, is available if the force used against the defendant exceeded the scope of the defendant's consent.

Subsection (d) also restricts the defense by codifying the traditional concept of the initial aggressor. In order to use the defense, the initial aggressor must withdraw or communicate an intent to withdraw and the force must continue despite this communication. See Irvine v. State, 104 Tenn. 132, 56 S.W. 845 (1900); Gann v. State, 214 Tenn. 711, 383 S.W.2d 32 (1964).

Subsection (e) represents a policy decision by the commission that the street is not the proper forum for determining the legality of an arrest. To a large extent, the rule is designed to protect citizens from being harmed by law enforcement officers. Research has shown that citizens who resist arrest frequently are injured by trained officers who use their skills and weapons to protect themselves and effectuate the arrest. If the defendant knows it is a law enforcement officer who has stopped or arrested him or her, respect for the rule of law requires the defendant to submit to apparent authority. The justification is restored if the law enforcement officer uses greater force than necessary under the circumstances and the defendant acts under reasonable belief that his or her acts are necessary for self-protection.

HISTORICAL AND STATUTORY NOTES

2007 Pub.Acts, c. 210, § 1, rewrote this section, which formerly read:

"(a) A person is justified in 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. The person must have a reasonable belief that there is an imminent danger of death or serious bodily injury. The danger creating the belief of imminent death or serious bodily injury must be real, or honestly believed to be real at the time, and must be founded upon reasonable grounds. There is no duty to retreat before a person threatens or uses force.

"( Any person using force intended or likely to cause death or serious bodily injury within the person's own residence is presumed to have held a reasonable fear of imminent peril of death or serious bodily injury to self, family or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

"© The threat or use of force against another is not justified if the person consented to the exact force used or attempted by the other individual.

"(d) The threat or use of force against another is not justified if the person provoked the other individual's use or attempted use of unlawful force, unless:

"(1) The person abandons the encounter or clearly communicates to the other the intent to do so; and

"(2) The other nevertheless continues or attempts to use unlawful force against the person.

"(e) The threat or use of force against another is not justified to resist a halt at a roadblock, arrest, search, or stop and frisk that the person knows is being made by a law enforcement officer, unless:

"(1) The law enforcement officer uses or attempts to use greater force than necessary to make the arrest, search, stop and frisk, or halt; and

"(2) The person reasonably believes that the force is immediately necessary to protect against the law enforcement officer's use or attempted use of greater force than necessary."

[Ricochet]

Fallguy,

Thanks for all the work you put in that helps everybody have a better understanding of the laws. It is really appreciated.

+1 Thanks Fallguy!!!

[Fallguy]

Thanks for the additional info Roscoe.

[Marswolf]

Re the permit revocation:

The one that bothers me is

Poses a material likelihood of risk of harm to the public.

Who decides this and upon what basis?

[KahrMan]

Re the permit revocation:

The one that bothers me is

Poses a material likelihood of risk of harm to the public.

Who decides this and upon what basis?

The one that bothers me is (4) Has been arrested for a felony involving the use or attempted use of force, violence or a deadly weapon or a felony drug offense;

Just cause you have been arrested it doesn't mean you are guilty. A lot of innocent people have been arrested.

[Fallguy]

Re the permit revocation:

The one that bothers me is

Poses a material likelihood of risk of harm to the public.

Who decides this and upon what basis?

Good question. It says "showing by its records or other sufficient evidence", but doesn't really say what that is or could be. At least the HCP holder can appeal if it suspended or revoked. 39-17-1353 & 39-17-1354

The one that bothers me is (4) Has been arrested for a felony involving the use or attempted use of force, violence or a deadly weapon or a felony drug offense;

Just cause you have been arrested it doesn't mean you are guilty. A lot of innocent people have been arrested.

You are right...an arrest does not make you guilty. At least you don't have to go through the appeals process if you are acquitted. I didn't post all of 39-17-1352 earlier. Sub-part (e)(3) "If the permit holder is acquitted on the charge or charges, the permit shall be restored to the holder and the temporary prohibition against the carrying of a handgun shall be lifted."

Also just to note sub-part (f) says if you are convicted of a Class A misdemeanor you HCP will be suspended for the length of whatever sentence is imposed and until any fines are paid in full and pay a $25 reinstatement fee.

[Punisher84]

I stumbled upon this and have not posted here in a good while, but maybe some of the older folks will remember me. Anyhow despite what the Rep. wrote I have had to dig into this myself and asked a friend who is a Lt. on the sheriff's dept. and a handgun permit instructor his findings. He states that he spoke with one of the members who drafted the new defense law and that with the legal terminology "notwithstanding"-Pronunciation: (not"wi&thslash;-stan'ding, -with-), [key]

—prep.

in spite of; without being opposed or prevented by: Notwithstanding a brilliant defense, he was found guilty. She went to the game anyway, doctor's orders notwithstanding.

—conj.

in spite of the fact that; although: It was the same material, notwithstanding the texture seemed different.

—adv.

nevertheless; anyway; yet: We were invited notwithstanding.

That you are no longer afforded protection under 39-17-1322. It's saying despite what 39-17-1322 says, if you are acting illegally you are acting illegally, not despite 39-11-611 as Fallguy had mentioned. I was really hoping for Fallguy's answer to be the end all, but it seems there is still debate. Anyone else have similar confusion?