Tennessee Takes Errant Self-Defense Shots Seriously, per 39-11-604

[Guest Law of Self Defense]

Hey folks,

 

I was reviewing recent TN self-defense cases for my Memphis and Nashville seminars next weekend, and I came across an interesting one from just this past May that I thought those of you in the Volunteer State might find interesting.

 

The case is Jarvis v. State, 2014 Tenn. Crim. App. LEXIS 453 (TN Ct. App. 2014), and it is interesting because it involves a facet of self-defense law that TN shares with only a few other states.

 

All of us are, of course, aware of the fact that we’re responsible for every round that comes out of our PDW.  TN is one of the few states that formalizes that responsibility in statute, specifically in 39-11-604, Reckless injury of innocent third person.”  That statute provides that:

 

Even though a person is justified under [TN self-defense law] in threatening or using force or deadly force against another, the justification afforded by this part is unavailable in a prosecution for harm to an innocent third person who is recklessly injured or recklessly killed by the use of such force.

 

 

In Jarvis, the defendant was engaged with gunfire by an attacker driving away in a car. The defendant retrieved his own gun from his vehicle, and returned fire. 

 

Unfortunately, one of the defendant’s rounds went awry and struck an unlucky fellow by the name of Willard Ross who was working a fireworks sale as the backstop to defendant’s fire.  I guess things could have gotten REALLY dramatic, but in any case the fellow who was struck died of his wounds.

 

At trial the defendant was up on a wide variety of charges, and he raised a legal defense of self-defense.  Of particular interest here was the murder charge he faced for the death of the poor Mr. Ross.

 

On that particular charge he was found guilty of the murder of Mr. Ross, and sentenced to 25 years. 

 

The defendant didn’t fare much better on his other charges, but it’s important to note that this murder conviction was not at all dependent on the others—even had he been fully acquitted of the other charges on the bases of self-defense, his reckless shooting of Mr. Ross would have been denied legal justification under 39-11-604.

 

So, in every state we’re at least theoretically responsible for every round we fire, even in purported self-defense.  But TN really puts some teeth in that admonition.

 

I didn’t hyperlink the case here in this post because I’m not sure about the rules for such things on this forum, but anyone who is interested can find a hyperlinked version of this post on my blog, with a link to the full-text of the court decision.

 

Have a safe and happy Fourth of July, everyone, and I look forward to seeing a bunch of you next weekend and Rangemaster, Nashville Armory—or, heck, both! J

 

--Andrew, @LawSelfDefense

 

 

 

[Oh Shoot]

....

In Jarvis, the defendant was engaged with gunfire by an attacker driving away in a car. The defendant retrieved his own gun from his vehicle, and returned fire. 

 

Unfortunately, one of the defendant’s rounds went awry and struck an unlucky fellow by the name of Willard Ross who was working a fireworks sale as the backstop to defendant’s fire.....

 

Seems about right to me as to conviction for some kind of criminal charge, just from common sense point of view -- though would have to know a bit more exactly about the logistics and timing of he encounter to opine whether the level of charging and sentence were appropriate though.

 

Initial thought being, while the defendant would undoubtedly be in reasonable fear of death or serious injury simply because he was being shot at, the threat would have been diminishing by the second as the perps car departed. Since the defendant had time to retrieve a firearm from his own car, seems he would have also had time to use his car as a barrier?

 

At any rate, it has been shown over and over that shooting at a fleeing vehicle isn't wise. Now, it would be a quite different thing if he was confronting the perp head on in one way or another. He might still be culpable for damages to a third party, but likely not criminally.

 

- OS

[Erik88]

Thanks for sharing this. Definitely interesting.

[Lowpower]

When I went through the Academy in another State, many years ago if you got shot at and people around you were supposed to be looking at your backstop. 

If the perp started putting people down then you could take whatever force necessary to put the guy down. Anyone hit after the bad guy put someone 

down was another charge against him, if he lived. 

 

Which raise sTN law as you noted it. Some crazy kid goes into the mall and opens up on anyone and everyone around. You take him under fire to stop

 him from hurting/killing more people then you hit a bystander with a bullet that went through the crazy. Are you still liable?

Edited July 3, 2014 by Lowpower

[Sam1]

Chip would be the board genius to explain that question LP.  maybe he'll catch this thread.

[Dolomite_supafly]

Personally I think it should be the same as when people die during the commission of a crime and that is the person who initiated the criminal act should be charged with any injuries or deaths, including fellow criminals. After all, but for the criminal's actions no one would have gotten hurt. A innocent person trying to defend his life should not have to worry about the legal ramifications and should only be worried about coming out the other end of the alercation.

[Dennis1209]

I've though long and hard on this matter myself.

 

Speaking for myself... Should an actual life or death situation ever occur for me (God forbid) I would most likely have to make that critical decision to draw and fire in a split second. For me, especially at my age, my brain can't process all the required information before the big bang(s). In public or around others, there's a lot of information to process in a split second that will be a life ending or life changing event.

 

Sometimes it's just better to keep it holstered and keep your cool even in a life & death engagement. I think I'd rather be dead than spend 25 years in prison, especially after watching all the "Locked Up Raw" programs on MSNBC :stunned:

[midtennchip]

I don't see 39-11-604 having any "teeth," in that it only codifies the idea that a person cannot use self-defense in relation to someone who was not attacking the defendant. It certainly doesn't make someone more responsible that he would be otherwise.

This case looks like an aberration for several reasons:

1. The defendant did not have a HCP and was convicted for being armed;
2. Self-defense wasn't effective anyway because the jury convicted him of attempted murder of the person who shot at him;
3. It appears the defendant, and/or his buddy, had some involvement in starting the confrontation (which juries don't like in TN); and
4. He was shooting at someone who was driving away from him, and doing it in a crowded parking lot around 1pm.

Taken together, I am not at all surprised by the verdict. The defendant was clearly reckless and unconcerned for the well-being of innocent people.

If the facts were different (for example, the mall shooting mentioned by LP), the outcome might have been different. However, I certainly agree that people need to be aware of the surroundings before using deadly force. The degree of responsibility that goes with using deadly force is much higher than many people think (or understand).

[Guest Law of Self Defense]

I don't see 39-11-604 having any "teeth," in that it only codifies the idea that a person cannot use self-defense in relation to someone who was not attacking the defendant. It certainly doesn't make someone more responsible that he would be otherwise.

 

Actually, that's not quite right.

 

Self defense, as a legal justification defense, usually protects the defender from ALL the consequences of his actions conducted in necessary and lawful self-defense.

 

So, if the bullet he fires misses, but strikes a vehicle, he's not subject to prosecution for criminal damage to property, for example.

 

In most states, if the act of defense was necessary to save your life, and you happen to kill an innocent in the process, you'll surely be subject to civil liability, but not usually to criminal liability.

 

Indeed, even TN only applies the criminal liability if your conduct was criminally reckless--which will be largely a function of the narrative of necessity and innocence you can "sell" to the prosecution/judge/jury.

 

If you're putting rounds downrange responsibly and happen to kill an innocent person--say, for example, a round doesn't wildly miss but merely over-penetrates--and was judged not reckless, then even TN law would not apply criminal liability.

 

--Andrew, @LawSelfDefense

[KKing]

I just want to take this opportunity to say that I feel really blessed to have very competent legal minds as a part of this board that speak in a way that even I can understand. Just another reason I like TGO. As for the case, any outcome would not surprise me. Self defense is questionable at best in that situation.

[~48_South~]

I do not understand how he was convicted with 2nd degree murder. Sounds like he really and I mean really got the shaft.

 

Second Degree Murder in Tennessee is:

1) The knowing killing of another; or

2) Any death resulting from unlawful distribution of Schedule I or II drugs if the drugs cause the death.

 

Reckless Homicide in Tennessee is simply, the reckless killing of another and is a Class D Felony. It provides for a lower standard of mental culpability, or mens rea. Reckless is conduct whereby the actor does not desire harmful consequence but foresees (or should foresee) the possibility and consciously takes the risk.

 

Then he gets 11 years for attempted 2nd degree murder. While I understand self defense does not apply to the killing of the innocent man it seems as though it should definitely apply to the shootout that took place between the two men. 

Edited July 4, 2014 by ~48_South~

[Guest Law of Self Defense]

Which raise sTN law as you noted it. Some crazy kid goes into the mall and opens up on anyone and everyone around. You take him under fire to stop

 him from hurting/killing more people then you hit a bystander with a bullet that went through the crazy. Are you still liable?

 

39-11-604 only applies if your conduct was reckless.  I don't see how an over-penetration could strongly be argued to be reckless--you hit the imminent threat, just as a cop would (or would try to do) and the round kept going. Physics.

 

Reckless would usually require some more extreme behavior.  Suppressive fire, anybody? Or, "I'm not gonna count rounds, I'm just gonna shoot until the gun is empty." Or, "Sights, what sights? It's all about point shooting!" Yeah, I wouldn't want statements like that in my internet history. :-)

 

--Andrew, @LawSelfDefense

[Guest Law of Self Defense]

I do not understand how he was convicted with 2nd degree murder. Sounds like he really and I mean really got the shaft.

 

Second Degree Murder in Tennessee is:

1) The knowing killing of another; or

 

Sure, but if you point a gun in the direction of another person and intentionally discharge the gun and kill them, that's the knowing killing of another.  Guns are inherently dangerous instruments.  It's not a strong argument to say, "Oh, hey, I didn't see that guy back there, standing in front of the giant fireworks stand." :-)  You're supposed to know if there's someone on the other end of that muzzle when you pull the trigger.

 

At least, I think so. :-)

 

--Andrew, @LawSelfDefense

[midtennchip]

Actually, that's not quite right.
 
Self defense, as a legal justification defense, usually protects the defender from ALL the consequences of his actions conducted in necessary and lawful self-defense.
 
So, if the bullet he fires misses, but strikes a vehicle, he's not subject to prosecution for criminal damage to property, for example.
 
In most states, if the act of defense was necessary to save your life, and you happen to kill an innocent in the process, you'll surely be subject to civil liability, but not usually to criminal liability.
 
Indeed, even TN only applies the criminal liability if your conduct was criminally reckless--which will be largely a function of the narrative of necessity and innocence you can "sell" to the prosecution/judge/jury.
 
If you're putting rounds downrange responsibly and happen to kill an innocent person--say, for example, a round doesn't wildly miss but merely over-penetrates--and was judged not reckless, then even TN law would not apply criminal liability.
 
--Andrew, @LawSelfDefense

Maybe we are only talking semantics, but the TN Sentencing Commission comments specifically state that "the underlying principle [of 39-11-604] is that a defendant's culpability is to be measured independently for each victim." If that is true (and applied as such by the court), then self-defense is not available as a defense to prosecution (at least not to reckless conduct) for the death or injury of an innocent bystander.

As to my statement that it has no "teeth," it does not create criminal liability. It only limits the defenses. 39-11-605, which is the civil remedies portion, also only limits the defenses. Neither section creates a right of action (civilly) or a criminal liability. Otherwise, I agree with your thoughts on reckless conduct.

[JayC]

Remember the key word reckless...  A DA would have to convince a grand jury let alone a jury in court that shooting at a bad guy in the act of committing a mass shooting was reckless.

 

I seriously doubt you'd get a DA to charge let alone convict in that situation but IANAL :)

 

 

 

When I went through the Academy in another State, many years ago if you got shot at and people around you were supposed to be looking at your backstop. 

If the perp started putting people down then you could take whatever force necessary to put the guy down. Anyone hit after the bad guy put someone 

down was another charge against him, if he lived. 

 

Which raise sTN law as you noted it. Some crazy kid goes into the mall and opens up on anyone and everyone around. You take him under fire to stop

 him from hurting/killing more people then you hit a bystander with a bullet that went through the crazy. Are you still liable?

 

[TMF]

[quote name="Law of Self Defense" post="1165045" timestamp="1404425327"]Hey folks, I was reviewing recent TN self-defense cases for my Memphis and Nashville seminars next weekend, and I came across an interesting one from just this past May that I thought those of you in the Volunteer State might find interesting. The case is [i]Jarvis v. State[/i], 2014 Tenn. Crim. App. LEXIS 453 (TN Ct. App. 2014), and it is interesting because it involves a facet of self-defense law that TN shares with only a few other states. All of us are, of course, aware of the fact that we’re responsible for every round that comes out of our PDW. TN is one of the few states that formalizes that responsibility in statute, specifically in [font='times new roman']39-11-604, Reckless injury of innocent third person.” That statute provides that:[/font] [font='times new roman']In [i]Jarvis[/i], the defendant was engaged with gunfire by an attacker driving away in a car. The defendant retrieved his own gun from his vehicle, and returned fire. [/font] [font='times new roman']Unfortunately, one of the defendant’s rounds went awry and struck an unlucky fellow by the name of Willard Ross who was working a fireworks sale as the backstop to defendant’s fire. I guess things could have gotten REALLY dramatic, but in any case the fellow who was struck died of his wounds.[/font] [font='times new roman']At trial the defendant was up on a wide variety of charges, and he raised a legal defense of self-defense. Of particular interest here was the murder charge he faced for the death of the poor Mr. Ross.[/font] [font='times new roman']On that particular charge he was found guilty of the murder of Mr. Ross, and sentenced to 25 years. [/font] [font='times new roman']The defendant didn’t fare much better on his other charges, but it’s important to note that this murder conviction was not at all dependent on the others—even had he been fully acquitted of the other charges on the bases of self-defense, his reckless shooting of Mr. Ross would have been denied legal justification under 39-11-604.[/font] [font='times new roman']So, in every state we’re at least theoretically responsible for every round we fire, even in purported self-defense. But TN really puts some teeth in that admonition.[/font] [font='times new roman']I didn’t hyperlink the case here in this post because I’m not sure about the rules for such things on this forum, but anyone who is interested can find a hyperlinked version of this post on my blog, with a link to the full-text of the court decision.[/font] [font='times new roman']Have a safe and happy Fourth of July, everyone, and I look forward to seeing a bunch of you next weekend and Rangemaster, Nashville Armory—or, heck, both! [/font][font=wingdings]J[/font] [font='times new roman']--Andrew, @LawSelfDefense[/font][/quote] Just so everyone is tracking, I recall this shooting. It was a big deal here in Clarksville. Both sides were gangbangers and all involved had a record. They turned a Walmart parking lot into their own personal shooting gallery. The result was a retired teacher being MURDERED. He was murdered because a bunch of drug dealing thugs forgot to keep their business in the ghetto, where they normally shoot at each other. This has nothing to do with self defense. The man who returned fire was illegally in possession of the weapon in the first place and was wildly shooting in a parking lot full of mothers and children at a car that was well out of range. Trying to represent this as an issue for lawful carriers is absolutely ridiculous. I also believe this is a backdoor way to advertise your seminar without having to pay any site fees. Sent from my iPhone using Tapatalk

[Sam1]

Just so everyone is tracking, I recall this shooting. It was a big deal here in Clarksville. Both sides were gangbangers and all involved had a record. They turned a Walmart parking lot into their own personal shooting gallery. The result was a retired teacher being MURDERED. He was murdered because a bunch of drug dealing thugs forgot to keep their business in the ghetto, where they normally shoot at each other. This has nothing to do with self defense. The man who returned fire was illegally in possession of the weapon in the first place and was wildly shooting in a parking lot full of mothers and children at a car that was well out of range. Trying to represent this as an issue for lawful carriers is absolutely ridiculous. I also believe this is a backdoor way to advertise your seminar without having to pay any site fees. Sent from my iPhone using Tapatalk

 

 

Ah, so basically that victim was caught in crossfire, not by an accident.

[TMF]

[quote name="Sam1" post="1165184" timestamp="1404473895"]Ah, so basically that victim was caught in crossfire, not by an accident.[/quote] The victim was a retired teacher and well respected member of the community who operated a fireworks stand. These thugs should have been tied to horses and dragged through the streets until there is nothing left of them. Sent from my iPhone using Tapatalk

[Guest Law of Self Defense]

This has nothing to do with self defense.

 

Well, the trial court disagreed, and it was (always is) fully within the court's discretion to disallow an argument of self-defense if the defendant fails to meet his burden of production.

 

But you knew that, I'm sure.

 

--Andrew, @LawSelfDefense

[TMF]

[quote name="Law of Self Defense" post="1165197" timestamp="1404478224"]Well, the trial court disagreed, and it was (always is) fully within the court's discretion to disallow an argument of self-defense if the defendant fails to meet his burden of production. But you knew that, I'm sure. --Andrew, @LawSelfDefense[/quote] Disagreed with what? He was a felon, a gang member and a drug dealer. I don't much care what the court says. You're attempting to parallel the case of this bottom feeder with actual, law abiding citizens. You think his record played no role in his conviction? Of course the defense can make a compelling argument for why this person was illegally in possession of a firearm due to fear for his life. He's a gangbanging drug dealer. Violent death is an occupational hazard. Seriously though, you've only come here in the past to peddle your book and now you're trying to peddle your seminar. Meanwhile, there are vendors here who have to pay for that. Nobody wants your snake oil. Sent from my iPhone using Tapatalk

[Guest Law of Self Defense]

Any meaningful study of self-defense law--whether in Tennessee or any other state--quickly reveals that the overwhelming body of self-defense court decisions involve the use of force between criminals, often criminals acting recklessly in the vicinity of innocent mothers and children.  

 

To a large extent, such "bad guy" cases ARE the judicial foundation of self-defense case law of our states.  To discard "bad guy" cases involving purported self-defense as being irrelevant to "good guy" use of force in self-defense is to discard the large majority of the laws governing the use of force in self-defense--whether by "bad guys" or "good guys."  

 

Indeed, perhaps the most comprehensive judicial overview of Tennessee self-defense law in recent years was the state Supreme Court case of State v. Hawkins, 406 S.W.3d 121 (TN Supreme Court 2013).  That single case touches upon an astonishing range of self-defense law issues, including:

 

• self-defense as a complete defense (rather than just a mitigation)
• self-defense as requiring absence of unlawful activity
• self-defense as taking place where person has a right to be
• objective reasonableness element of self-defense
• subjective reasonableness element of self-defense
• imminence element of self-defense
• proportionality element of self-defense
• innocence element of self-defense
• effect of mutual combat on self-defense
• defense of third persons
• the "alter ego" doctrine

 

Sounds awesome, right?  And it IS awesome.  BTW, if you haven't read the Hawkins decision, you've missed a major TN state Supreme Court case on self-defense law, and one that was decided recently (June 2013).  Fill that gap, if it exists.  I'm a strong advocate of CCW'ing "like a professional".  Knowing the laws--statutes, jury instructions, and cases--that govern the use of force in self-defense is just as important to CCW'ing "like a professional" as is understanding defensive tactics and your PDW's manual of arms. IMHO, of course. :-)

 

Incidentally, the self-defense portion of Hawkins is quite brief and easy to read.  The case didn't announce any changes to TN self-defense law, so nothing dramatic happened in that sense, it just nicely brings together so many distinct elements of TN self-defense law in a single case.  (I did a search for "Hawkins" on the forum here, and nothing came up, which is why I mention it now.  I'm sure you can find the case by simply Googling for it, and of course the case is available in full-text on my blog, along with dozens of other TN cases, statutes, and jury instructions--all totally free.)

 

In any case, the value of Hawkins as an exposition on TN self-defense law by the state Supreme Court is not diminished a whit by the fact that the actors in the case were some of the worst criminal scum imaginable:  the case is the result of a brawl, including gun fire, between gangs of Bloods and Crips outside a family entertainment facility, with plenty of innocent people--including women and children--around.  That reality in no way diminishes the correctness of the Supreme Court's exposition of Tennessee self-defense law within their decision of that case. 

 

It's a free country, and anyone is free to ignore court cases in which self-defense is argued simply because those cases involved "bad guys," as did Jarvis, with which I started this thread, and Hawkins.

 

I would suggest, however, that doing so comes at considerable legal peril.

 

--Andrew, @LawSelfDefense 

[Guest Law of Self Defense]

As to my statement that it has no "teeth," it does not create criminal liability. It only limits the defenses. 

 

Haha, perhaps we have devolved to semantics.  To my mind, defenses reduce or eliminate liability, and limiting defenses thereby increase or create liability.  

 

But I'm guessing you're an attorney in TN.  I most definitely am not. I therefore defer to your considerably greater expertise on TN law. :-)

 

--Andrew, @LawSelfDefense

[Guest Law of Self Defense]

I don't much care what the court says. 

 

Oh. I see.

 

Well, that's your right.  

 

I care a great deal what the court says, because it determines whether or not a use of force against another results in an acquittal or 20-to-life.  

 

That matters to me.

 

But it's a free country.  I wish you luck with your approach. :-)

 

--Andrew, @LawSelfDefense

[Guest Law of Self Defense]

Seriously though, you've only come here in the past to peddle your book.

 

Book? I'm pretty sure the only person who has mentioned a book is, well, you.

 

Thanks, I guess. :-)

 

--Andrew, @LawSelfDefense

[TMF]

[quote name="Law of Self Defense" post="1165244" timestamp="1404486362"]Book? I'm pretty sure the only person who has mentioned a book is, well, you. Thanks, I guess. :-) --Andrew, @LawSelfDefense[/quote] And, to borrow your words, it is also your right to be a liar. The only other time you came here was during the Zimmerman fiasco in an attempt to capitalize on the hype by starting a thread, then hocking your book in it. I called you out then like I'm calling you out now. The mods didn't see fit to delete your nonsense, so I guess it didn't violate their policy. If I had a few more minutes to devote I'd locate that thread real quick to show what a POS you are and your obvious intentions here. However, it is a violation to thread dump all over someone selling something, but since you're not paying for the advertisement, I'll assume that doesn't apply to this thread. If I'm wrong then I'm sure the mods will delete this post at your request. By all means, please let them know. MEMBERS OF TGO: DO NOT ATTEND THIS MAN'S SEMINARS OR PURCHASE HIS BOOK!!! Here is why: he is a dishonest man, as he came here under false pretenses of debating a court case that took place over 5 years ago, with the intention of selling seats at his seminar for the purpose of selling his book. I would not suggest you seek self-defense advice from someone so clearly of low ethical character. Furthermore, what he is offering is a regurgitated version of the hard work of other self-defense experts, so I wouldn't waste money on this community college dropout dispensing the opinions of others as his own. In fact, what he is doing is looking to cheat folks out of their hard earned money just to tell them information that can be readily accessed over the internet. I would argue that his information is largely irrelevant, since he is not even living in this part of the country; how can he be more of an expert than the dozens of resources my fellow Tennesseans have locally? This man is a snake oil salesman, peddling meaningless tonic that will not improve your understanding of self defense laws in Tennessee. I encourage TGO members to PM this assclown and tell him to kick rocks. Sent from my iPhone using Tapatalk Edited July 4, 2014 by TMF