Confusiuon about "Castle Doctrine"

[wjh2657]

I am thoroughly confused about "Castle Doctrine" as it applies here in Tennessee. I need help from folks who really know (LEO, Lawyers, Instructors, etc)

1. Duty to retreat and reasonable grounds :

(HR1907)

"Under this bill, a person who is not engaged in unlawful activity and is in a place where such person has a right to be would have no duty to retreat before:

2) Threatening or using force intended or likely to cause death or serious bodily injury if 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"

It is my understanding that the jury can still be instructed in the principle of duty to retreat and may consider that in their findings of reasonable grounds for fear. In short if the shooter could have retreated the threat may have diminished or disappeared and therefore shooting was not based on reasonable fear.

Reasonable grounds for fear is determined by jury, not individual's actual perceptions at the time. In other words, jury decides from their perception of situation if there was reasonable grounds for fear.

Protection from lawsuit:

(HR1907)

"The court would award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by a person in defense of any civil action brought against the person based upon that person's use of force if the court finds that the person's use of force was justified."

If the jury decides against me (not Justifiable homicide) I stand to lose everything, including the "castle". There is no "blanket" protection against civil suit just because the shooting occured in my house.

In short everything still depends on jury and their decisions.

Nice words , but it seems to me that I am under exactly the same rules in my house as I am on the street. The law does not say I can shoot anybody for breaking in my house at night. I can only shoot them if I can prove to a jury that i was actually in threat of my life ( as per the normal argument for self defense.) That means an actual assault upon my person or my wife, started within a reasonable distance (30' or less) by somebody with a deadly weapon.

This argument is based on observed SD cases in court (Case Law) and not the letter of the law. I am not arguing about the law, I just think it is important to understand what it says before I become a guest of the state.

Edited October 11, 2008 by wjh2657

[BigPoppa]

The law does not say I can shoot anybody for breaking in my house at night. I can only shoot them if I can prove to a jury that i was actually in threat of my life ( as per the normal argument for self defense.

Tennessee law allows you the presumption of harmful intent by unauthorized persons in your home. There exists no duty to retreat in your own home.

Later tonight (possibly tomorrow - computer problems) I will post the link.

[Guest unreconstructed1]

T.C.A.- 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.

[midtennchip]

wjh, where are you getting the quotes in your original post? I do not have access to the pattern jury instructions at the moment, but I cannot locate any of the quotes you included above through an internet search. I have not been able to locate a single case in which a judge required a jury instruction in a self-defense case that stated the defendant had a duty to retreat (at least not one that was in contradiction to the "castle doctrine").

If you can point me in the right direction with your quotes above, I may be able to help.

Midtennchip, The Resident Lawyer

[ukerduker]

Retreat or not, if someone forcefully enters my residence, their breathing will be assisted by a few "relief holes" in the chest.

Defend the family and property, then sort out the details.

[Guest Revelator]

This thread should move to the Concealed Carry and Self Defense forum. This is not a 2nd Amenment/RTKBA issue. I'd move it but my moderating powers do not extend that far; I'll see what I can do.

Ukerduker gets a tall cold one . That's really what matters. Decide to pull the trigger then sort out the legalities, not the other way around.

All the castle doctrine does is give you a presumption of that reasonable belief that you don't get on the streets. Ideally that would make things easier if you blow away an intruder in your home, but you never really know until it happens.

Edited October 11, 2008 by P. Stegall

[Guest bkelm18]

Retreat or not, if someone forcefully enters my residence, their breathing will be assisted by a few "relief holes" in the chest.

Defend the family and property, then sort out the details.

I agree however, you can't kill someone over property alone.

[ukerduker]

I agree however, you can't kill someone over property alone.

Who's talking about killin? I was thinking more along the lines of inviting him in to review my families' self-defense plan.

[Guest looneeetunes]

Who's talking about killin? I was thinking more along the lines of inviting him in to review my families' self-defense plan.

kind of a show and tell invite

[Fallguy]

This thread should move to the Concealed Carry and Self Defense forum. This is not a 2nd Amenment/RTKBA issue. I'd move it but my moderating powers do not extend that far; I'll see what I can do.

Done

[Fallguy]

Tennessee law allows you the presumption of harmful intent by unauthorized persons in your home. There exists no duty to retreat in your own home.

Later tonight (possibly tomorrow - computer problems) I will post the link.

There is no duty to retreat ANYWHERE that you have legal right to be, not just in your home.

The biggest difference (as already said) is in your house and certain other areas there is a presumption you are in fear of death or great bodily harm if someone illegally and forcibly enters those areas.

If for some reason the police or DA feels something is wrong you could still be charged, but they would have to prove you weren't in fear as opposed to you proving you were.

There was a case back in Memphis a few months ago. On the surface it looked like a ex-boyfriend entered this woman's home and the new boyfriend shot him. On the surface all is good right? Well after investigation they found the woman had invited the ex over and set up the confrontation, so...no one was actually in fear and they were prosecuted.

Relevant T.C.A. to the "Castle Doctrine"

39-11-611 Self-defense.

39-11-622 Justification for use of force — Exceptions — Immunity from civil liability.

[DaveTN]

If a “reasonable person†(that means a jury) believes that they are in danger of immediate death or great bodily harm, they are justified in the use of deadly force. That works in all 50 states as far as I know.

Shooting someone because they are on your property or stealing your property probably will land you in court.

Most reasonable people will agree that meeting an intruder in your home satisfies “danger of immediate death or great bodily harmâ€. Shooting a 15 year old neighborhood kid in the back that is trying to escape does not.

Tennessee has no law that protects you from a lawsuit.

Tennessee has a law that allows for a judgment against someone that sues you when you were justified. A judgment will not help you get back the money you are going to have to spend if the dirt bag that sues you has no ability to pay.

As someone that has responded to these incidents I have said this before and I will say it again….

You need to have a plan in case you have to use deadly force. Whether or not you go to trial could be determined in the minutes or hours following a shooting. If you are justified you need to cooperate with investigators when they arrive. If you are going to invoke your right to speak to an attorney prior to making a statement; you need to be able to make contact right then. Not the next day when he gets to the office.

Your first call should immediately be to 911. The second call should be to an attorney if you are going to use one.

[Guest unreconstructed1]

Who's talking about killin? I was thinking more along the lines of inviting him in to review my families' self-defense plan.

the way I've always explained it, I don't shoot to kill, I shoot to live.

[Guest Revelator]

Quote: If a “reasonable person†(that means a jury) believes that they are in danger of immediate death or great bodily harm, they are justified in the use of deadly force. That works in all 50 states as far as I know.

In some states you still have a duty to retreat before using deadly force, even in your home , but I think more and more those types of laws are going the way of the dodo bird. I think it's only a matter of time before all states have at least some form of castle doctrine.

[Fallguy]

Here is info about the Castle Doctrine in general and comparisons from state to state on Wikipedia.

[DaveTN]

In some states you still have a duty to retreat before using deadly force, even in your home , but I think more and more those types of laws are going the way of the dodo bird. I think it's only a matter of time before all states have at least some form of castle doctrine.

I think my own personal justification will work no matter what state I am in; but I want to be sure. What state has a duty to retreat when faced with immediate danger of death or great bodily harm? That statement, by its very nature implies that you do not have time to retreat, and has nothing to do with castle law.

Castle law comes into play when you want to shoot people in your home and you don’t want to have to justify the shoot; by their mere presence they are assumed to be an immediate threat.

[Fallguy]

I think my own personal justification will work no matter what state I am in; but I want to be sure. What state has a duty to retreat when faced with immediate danger of death or great bodily harm? That statement, by its very nature implies that you do not have time to retreat, and has nothing to do with castle law.

Castle law comes into play when you want to shoot people in your home and you don’t want to have to justify the shoot; by their mere presence they are assumed to be an immediate threat.

According to wikipedia (I know not necessarily the best source of info) Iowa, Pennsylvania and Virgina say you must retreat to some degree. It says in Iowa you do not have to leave your home, but may require you to retreat within your home.

TN would be considered a "Stand your Ground" state also, in that you do not have to retreat anywhere that you have a legal right to be. Some state while not requiring retreat within your home may require retreat when you are elsewhere.

[DaveTN]

According to wikipedia (I know not necessarily the best source of info) Iowa, Pennsylvania and Virgina say you must retreat to some degree. It says in Iowa you do not have to leave your home, but may require you to retreat within your home.

TN would be considered a "Stand your Ground" state also, in that you do not have to retreat anywhere that you have a legal right to be. Some state while not requiring retreat within your home may require retreat when you are elsewhere.

When you hear a noise in the night and walk into your living room to find a thug pointing a handgun at you; how far do these state laws say you need to retreat? My guess is they don’t.

I am not a lawyer and never played one on TV, but I would bet money that “The immediate danger of death or great bodily harm†trumps duty to retreat in all 50 states.

“Duty to retreat†was brought into play by criminal coddling liberals that believe you don’t get to murder some poor misguided thug because he breaks into your home. But even those liberals are willing to blow his azz away if he is an immediate threat.

[Fallguy]

I agree that once you are "in fear of great bodily harm or death" you can use deadly force in any state. But apparently some states say you would not be considered "in fear of great bodily harm or death" if you are able to retreat, especially in a public place.

In Iowa it appears you do not have to retreat if it "....entails a risk to life or safety, or the life or safety of a third party, or requires one to abandon or retreat from one's dwelling or place of business or employment." Iowa Code 704.1

To me that means you must retreat if you can do so with out risk to life or safety to you or a third party. Also you don't have to leave your house or place of business.

Pennsylvania says you must retreat if "the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take" PA Code § 505(b)2ii

Again it appears you must retreat if you can do so with safety. Other parts say if you were the initial aggressor you must retreat period, even within in your own home.

[wjh2657]

Below is the link we used for HR 1907 (proposed CD law.) Others in forum have posted other, probably more current links.

http://www.legislature.state.tn.us/

The information about instructing the jury is in the book: Carrying a Handgun for Self Defense in Tennessee (Third Edition) ,John L. Harris III, pp 74-85.

Remember here, This was just a discussion and I asked others for info. I am not stating any legal case here. A lot of the doubt was raised by the personal experience of the Public Defender and Prosecutor that were present in the original discussion. Needless to say they didn't give any references that I could quote, although similar case law info was in the book referenced.. The point brought forth by the attorneys was that the prime "litmus test" is still going to be the plea of self defense , based on a reasonable fear and a reasonable reaction.

Castle Dictrine did not change the wording or conditions for reasonable fear other than that you can presume the worst. However the prudent or reasonable action may still be construed by a jury to mean seeking cover (safe room) and warning the perpetrator. If perpetrator did not enter room than you taken reasonable force and action and deadly force was avoided. If you took no action but to meet the guy and blow him away in your living room, is it not possible that a liberal jury may feel that excessive force was used and convict for manslaughter?

If you are watching TV and door suddenly comes crashing down and a guy who is not a LEO (how do you tell? A lot of cops look pretty scruffy these days.) come rushing through the door, we were pretty sure that you are covered to open up COM and do your duty. If you are in the same space and there is no time, you do not have to retreat.

If you have to cross over to other rooms to check on children and encounter the BG, we were pretty sure you can fire if you encounter him while he is moving toward you.

The point is that you still have to meet all of the conditions for Self Defense. Whoever told you that the prosecutor has to prove you didn't fire in self defense is not totally honest with you. The prosecutor only has to raise doubt in the minds of the jury as to self defense. You don't determine anything in court, the jury decides whether it was self defense or not. It isn't what happened that counts, it is what the jury thinks happened that counts (personal experience from sitting on jurys.)

I am still running my house drill for nightime break-in (us in bed)to stay in bedroom as safe room (no kids and mom and I still sleep together!) and warning I have called police (we have ATD and siren will probably be going too). Unless he fires into bedroom or enters bedroom, very unlikely I will fire.

A macho hero's reward in this type of case could be a number and a cell, as well as family on the street because you lost the house in a law suit. At 65, and current financial situation in U.S. it is not something I can worry about after the fact.

Are you totally immune from the "reasonable fear and actions" part of the self defense law because you are in your home? I honestly don't know, my lawyer buddies felt it was possible for the shoot to go down against you.

This ain't Dodge City and I ain't Bill Hickock!

Edited October 12, 2008 by wjh2657

[Punisher84]

Below is the link we used for HR 1907 (proposed CD law.) Others in forum have posted other, probably more current links.

http://www.legislature.state.tn.us/

The information about instructing the jury is in the book: Carrying a Handgun for Self Defense in Tennessee (Third Edition) ,John L. Harris III, pp 74-85.

Remember here, This was just a discussion and I asked others for info. I am not stating any legal case here. A lot of the doubt was raised by the personal experience of the Public Defender and Prosecutor that were present in the original discussion. Needless to say they didn't give any references that I could quote, although similar case law info was in the book referenced.. The point brought forth by the attorneys was that the prime "litmus test" is still going to be the plea of self defense , based on a reasonable fear and a reasonable reaction.

Castle Dictrine did not change the wording or conditions for reasonable fear other than that you can presume the worst. However the prudent or reasonable action may still be construed by a jury to mean seeking cover (safe room) and warning the perpetrator. If perpetrator did not enter room than you taken reasonable force and action and deadly force was avoided. If you took no action but to meet the guy and blow him away in your living room, is it not possible that a liberal jury may feel that excessive force was used and convict for manslaughter?

If you are watching TV and door suddenly comes crashing down and a guy who is not a LEO (how do you tell? A lot of cops look pretty scruffy these days.) come rushing through the door, we were pretty sure that you are covered to open up COM and do your duty. If you are in the same space and there is no time, you do not have to retreat.

If you have to cross over to other rooms to check on children and encounter the BG, we were pretty sure you can fire if you encounter him while he is moving toward you.

The point is that you still have to meet all of the conditions for Self Defense. Whoever told you that the prosecutor has to prove you didn't fire in self defense is not totally honest with you. The prosecutor only has to raise doubt in the minds of the jury as to self defense. You don't determine anything in court, the jury decides whether it was self defense or not. It isn't what happened that counts, it is what the jury thinks happened that counts (personal experience from sitting on jurys.)

I am still running my house drill for nightime break-in (us in bed)to stay in bedroom as safe room (no kids and mom and I still sleep together!) and warning I have called police (we have ATD and siren will probably be going too). Unless he fires into bedroom or enters bedroom, very unlikely I will fire.

A macho hero's reward in this type of case could be a number and a cell, as well as family on the street because you lost the house in a law suit. At 65, and current financial situation in U.S. it is not something I can worry about after the fact.

Are you totally immune from the "reasonable fear and actions" part of the self defense law because you are in your home? I honestly don't know, my lawyer buddies felt it was possible for the shoot to go down against you.

This ain't Dodge City and I ain't Bill Hickock!

Come into my house forcibly and you're going out on a stretcher unless you turn and vacate immediately. That's plain and simple. Castle doctrine is pretty clear and unless there is some motive (as the previously mentioned case here in memphis) to the contrary, you're in good shape legally.

Tn law has become pretty clear about what is justified and what you have to do to meet those requirements. The main thing is that you do not have to retreat if you are doing what you have a legal right to be doing. If someone comes in MY home by force, I'm going to take that one way and that is as a threat to mine and my family's lives.

[DaveTN]

A macho hero's reward in this type of case could be a number and a cell, as well as family on the street because you lost the house in a law suit. At 65, and current financial situation in U.S. it is not something I can worry about after the fact.

This is an excellent point that many don’t think about.

I have to laugh every time I see “I would rather be tried by twelve than carried by six.†Sounds pretty macho huh? It’s silly and shows a total lack of knowledge of the law.

I don’t want to be tried by a jury in criminal court; depending on where you live the conviction rates are up around 70-80%.

I also don’t want to be tried in a civil court. Losing everything you have does not help protect your family.

The days of killing someone to protect property are over in most states. The Castle Doctrine laws of today are not to give you the right to kill to protect your home, but are intended to remove the burden of proving that you were in fear of your life, from an intruder, while in your home.

I can buy a new house, I can buy a new car, and also they are both covered by insurance. I will not put my freedom or my family’s future in jeopardy merely to protect property. I have firearms to protect lives.

[Guest Revelator]

It depends if the guy is there to steal the toaster or if he's bent on murder. But we wouldn't know that at the time, so we should assume the worst. I would. And that's why we have the castle doctrine to protect us. Whether you should start blasting away at the first sight of an intruder is going to depend on many things. Personally I believe that even if you were to shoot an intruder in the back in your home, and the police found the guy lying in the doorway, as if he was trying to run away and not pose any harm, and he had no weapon in his hands or on his (now dead) person, you'd be ok legally. I think the cops would take one look at that and say, "We've got no problem with what you did." Heck, look at the guy in Texas a couple months ago who did not get indicted when he went into the neighbor's front yard and shot one, maybe two guys (can't remember) who were stealing some property from next door. He even called 911 before shooting! I'm all for the castle doctrine, but personally I thought that was taking it a tad too far. Others feel different.

If and when it happens, it could happen in a way you never expected. There are just too many variables to try and figure out how it would go down. You've got to balance prudence with decisiveness, and that's not easy. Good luck (to me, too )

[Punisher84]

I don't know how I feel about taking a life over property. If someone grabs my stereo out of my car and takes off I'm gonna be really mad, but I don't think it's worth killing them over. Catch them and give them an attitude adjustment, sure.

My problem is someone in my home forcibly, trying to get in my car or me out of it forcibly, or trying to take my wallet, valuables by force. I don't know their intentions. Here is this person threatening me by their words and/or actions, so what am I supposed to assume. What any reasonable person would assume.

I agree with DaveTN when he says

I can buy a new house, I can buy a new car, and also they are both covered by insurance. I will not put my freedom or my family’s future in jeopardy merely to protect property. I have firearms to protect lives

, but I am also not going to just assume that a man in black clothes holding a crowbar in my living room at 3 am with my splintered door behind him is just there to grab my TV. If he is and can get out with it before I get to say/do anything otherwise, lucky for him, but otherwise he better be on the floor hands spread and waiting for SCSD, if not he is gonna have a very bad night.

[wjh2657]

Some good replies here. Just to let you know I didn't mean it as a trap, "splintered door and crowbar in hand" will mean 5 fast reports from my J-frame also. My question was when no weapon is visible and you have waited too long to react, wouldn't letting them escape be the safest route? Take a good hard look so you can identify them later and return to a ready mode. Holding anybody at gun point sounds terribly risky to me, if you fire at them later because they try to get up it will sure look like an execution. Might go in Texas with Mexicans as BGs but I don't really think it will fly under the "Self Defense Litmus Test" in Tennessee, especially if the BGs turn out to be relatives of a lot of locals.

I think the Castle Doctrine is only a help if you are startled or there is a forcible break in. Somebody coming through an unlocked door or you catching them inside during a burglary might well be outside the pale of CD, with the old SD rules coming into play. I don't really know, but I won't feel real comfortable with it until we see some case law.

Meanwhile, I do lock my doors, ADT is turned on and S&W is by the bed. I am going to have splintered door and siren blaring when the LEA arrive.