Calling Legal Eagles: TN Case Law for Serious Bodily Harm

[E4 No More]

I've been watching a video series from Concealed Carry University, and it's got me thinking a lot about self-defense as I get older. Particularly, it's brought up the question of what defines reasonable fear of serious bodily harm in relation to my age and health?

 

Now I'm a 54 year old who's 6'4" and 290 lbs. I'm a former Marine and LEO who did study martial arts for a few years, but that was over 20 years ago and I didn't reach brown belt status, (I was ready to test but never did). Just standing in front of the normal person I would seem still perfectly capable of defending myself from most others should the need arise: however, what's underneath tells the true story. I have had two back surgeries, have stage 3 kidney failure, and polyneuropathy due to diabetes. I have arthritis in my back, hip, and I have left foot/ankle problems from the polyneuropathy. I walk with a limp of varying severity that seems dependent upon what day it is. It would be unrealistic for me to expect to be able to either run away from, or defend myself against, even just one younger male who's intent on doing me harm, and since statistically that's the likely scenario in an attack it makes this problem extremely relevant. Unless I were to be very lucky and land a decisive block/counterpunch I'm going to get beat badly. Now I know better than to intentionally escalate a situation, but we also know that you can do everything right to no avail. Since most seem to think that I can't warn someone that I'm in possession of a gun, (besides losing tactical advantage), that doesn't seem to leave me many options.

 

So is there case law that demonstrates what "reasonable fear of serious bodily harm" would be here in Tennessee? My guess is that it is completely subjective to whom is making the judgement, but I thought it would be worth the discussion amongst the forum's legal experts.

[Will]

I took an advanced firearms training class in Mid TN last year and the instructor who is quite tall and large and ex LEO- Swat ,early sixties said  "I am a fat old man with

back problems and if somebody plans on hurting me with or without a gun,I am shooting them."  I left out some language to clean it up.   So there is one trainers opinion.

If you want to pm me I can tell you who it is.

[Randall53]

Sadly, In todays world, it would be depending on the color/race of your attacker.

Edited February 12, 2015 by Randall53

[tnguy]

So is there case law that demonstrates what "reasonable fear of serious bodily harm" would be here in Tennessee? My guess is that it is completely subjective to whom is making the judgement, but I thought it would be worth the discussion amongst the forum's legal experts.

 

Why try and second guess yourself? You are either in fear of serious bodily harm or not. Deal with it honestly and then face the outcome.

[Oh Shoot]

Near as I can tell, even though I do have various physical issues,  I'm in the top 25% or better health/shape wise for my age group (knock on wood).   Nonetheless, I am 66.5 and simply nowhere near as lithe or strong as I was even ten years ago, let alone of course back when.

 

Which is simply to say, there's no doubt in my mind that I'll have a reasonable fear of serious injury or death if I have to face a beating -- and can assure you I don't intend to take one. Let the chips fall where they may afterwards.

 

- OS

Edited February 12, 2015 by Oh Shoot

[E4 No More]

Why try and second guess yourself? You are either in fear of serious bodily harm or not. Deal with it honestly and then face the outcome.

The short version is: mental preparation. It helps condition your brain to act rather than freeze if you've already thought it through - which is a far greater problem than most people are willing to admit to themselves. That's why as a LEO one of the first classes that I took at the MHP Academy was Red Handled Gun which trains you to rapidly transition from yellow/orange to red.

[E4 No More]

There's more than letting the chips fall where they may. When you look like I do to the uninformed it's an uphill battle. You simply can't say that the dips##t picked the wrong gimp to screw with and move on. Edited February 12, 2015 by SWJewellTN

[Oh Shoot]

There's more than letting the chips fall where they may. When you look like I do to the uninformed it's an uphill battle. You simple can't say that the dips##t picked the wrong gimp to screw with and move on.

 

I'm 6'2", overweight at 225 or so, but certainly don't look defenseless either to most anyone I wouldn't think. But certainly, after the fact, your various ailments would almost certainly figure into the equation more than mine.

 

And btw, contrary to the "don't ever pull a gun unless you pull the trigger" talk, you don't have to do that. It's clear that many incidents are defused all the time by the mere presentation of a firearm. Though of course you should be mentally prepared to use it if you pull it, doesn't mean that actually pulling the trigger is always necessary.

 

- OS

Edited February 12, 2015 by Oh Shoot

[midtennchip]

The short answer is no, there is no definition to point you to other than "reasonable." It depends on the specific circumstances and (hopefully none of us have to get to this point) what the jury BELIEVES was "reasonable" under those circumstances. There are no hard and fast rules. In fact, what someone believes is reasonable right this minute could easily change from time to time. I think with news reports of groups of kids attacking people randomly, more people would find self-defense more reasonable in that situation today than they did just a year or two ago.

It is a burden that gun owners must deal with.

[E4 No More]

The short answer is no, there is no definition to point you to other than "reasonable." It depends on the specific circumstances and (hopefully none of us have to get to this point) what the jury BELIEVES was "reasonable" under those circumstances. There are no hard and fast rules. In fact, what someone believes is reasonable right this minute could easily change from time to time. I think with news reports of groups of kids attacking people randomly, more people would find self-defense more reasonable in that situation today than they did just a year or two ago.
It is a burden that gun owners must deal with.

Thanks Chip. What about Oh Shoot's comment on showing a weapon? I would perceive that as a simple warning, but others opine that it's unjustified deadly force, assault, or escalation.

[Oh Shoot]

Thanks Chip. What about Oh Shoot's comment on showing a weapon? I would perceive that as a simple warning, but others opine that it's unjustified deadly force, assault, or escalation.

 

Hell, it's aggravated assault to show a firearm so as to cause fear. But we're already talking about a situation wherein you might well need to pop a cap -- I wasn't advising such unless one were indeed already in that level of threat. Only that the ultimate choice might not have to be made too.

 

- OS

Edited February 12, 2015 by Oh Shoot

[DaveTN]

It’s wide open. I think it depends more in your involvement than your physical condition.

If you are a willful participate in an argument or a road rage situation and then find yourself getting your azz beat you probably won’t get much sympathy from the Police Officers, DA, and then Judge or jury.

Pulling a gun is not the use of deadly force. Threatening someone with it without justification is aggravated assault. If the Police and DA believes you were justified; it’s a non-issue. If they think you were threatening someone without cause; you go to jail and then trial.

[midtennchip]

OhShoot and Dave have it right. The issue of showing a gun is complicated. If you are in a situation where pulling th eague stops the threat (or reduces it), shooting is probably going too be too far. However, like very thing else, it depends on exact circumstances.

[RED333]

I have thought a lot about this as well, I sometimes have to go into bad areas.

As much as I have thought as to what I would do I still do not know.

I do keep my head on a swivel, drive around the building once to look for trouble and act on what I see.

I have called the customer when I see what I think does not look right and let them know what is going on.

It is a scary world, punks or thugs (what you call them) are my fear, some being so young and the group so large there is no way to

tell what might happen. My advice, look close, drive around and look for "trouble".

I wont get out of the car if I see more than 2 or 3 in a group.

Leave the area as fast as you can, call me a scared y cat, I dont care, I want to wake up on this side of the grass.

[E4 No More]

It’s wide open. I think it depends more in your involvement than your physical condition.

If you are a willful participate in an argument or a road rage situation and then find yourself getting your azz beat you probably won’t get much sympathy from the Police Officers, DA, and then Judge or jury.

Pulling a gun is not the use of deadly force. Threatening someone with it without justification is aggravated assault. If the Police and DA believes you were justified; it’s a non-issue. If they think you were threatening someone without cause; you go to jail and then trial.

Thanks for what you wrote, Dave, because this reinforces a point in the discussion, and in my case, why I wrote in the OP that I know better than to intentionally escalate a situation as a caveat. If one is dumb enough to intentionally escalate a "Monkey Dance" then they deserve the consequences from do so.

 

I imagine that just about every middle aged adult male knows of an incident which fits what some call a type of an antisocial attacker. It's the young alpha male type who wants to impress a woman or maintain dominance in his peer group, so he looks for someone to fight that he thinks he can beat. The guy that I'm watching refers to it as the "Monkey Dance." We normally associate this behavior with areas where alcohol is consumed, but with the prevalence of the thug mentality of today's youth it has become a threat all over, (think about "The Knock-out Game" going on around the country as one example). The possibility of being physically assaulted without provocation is increasing daily. Like I said before about my physical appearance to the average person who isn't looking for a fight, (LEO, DA, Judge, or Juror), sends one message, but the nuances conveyed physically, (my limp and age), could tell one of these males that they can take the big guy and press a fight regardless of lack of escalation on my part. I've experienced some form of this in my younger days, so to me it's not a stretch to believe that I could experience this today. I feel that if I don't prepare myself mentally for the unlikely occurence then I'm likely to hesitate in the event that I do experience it. In my case, that hesitation could lead to one good strike to a kidney that could put me on dialysis.

 

In Missouri where I was a LEO, (granted, it was over 22 years ago), the accepted practice was that if someone simply showed that they had a lawfully possessed weapon as a warning to an aggressor, (whether it be verbal, lifting your shirt to show it, or holding it in a manner not pointing it at someone else), then it wasn't considered assault, but if you aimed it at someone without cause then it was assault. So it appears from your statement that it is the same here in Tennessee - which is important for everyone to know.

[E4 No More]

I have thought a lot about this as well, I sometimes have to go into bad areas.

As much as I have thought as to what I would do I still do not know.

I do keep my head on a swivel, drive around the building once to look for trouble and act on what I see.

I have called the customer when I see what I think does not look right and let them know what is going on.

It is a scary world, punks or thugs (what you call them) are my fear, some being so young and the group so large there is no way to

tell what might happen. My advice, look close, drive around and look for "trouble".

I wont get out of the car if I see more than 2 or 3 in a group.

Leave the area as fast as you can, call me a scared y cat, I dont care, I want to wake up on this side of the grass.

I attempt to stay situationally aware as well, but as we all know trouble can simply find you.

[JayC]

I'd suggest doing whatever you need to do to stay alive and not end up in the hospital...  As Chip said, reasonable changes as the wind blows, and the exact circumstance of the situation will color the outcome a lot.

 

But it's probably better to be alive, and end up with a charge than it is to be in the hospital or worse...  The fact is even if you get charged, you'll have an opportunity to present the facts of your situation, hopefully before being officially charged, and for sure in court.

 

Chip knows better but I imagine if it's even remotely a 'close' call, being a former police officer, and the medical problems you describe, the DA is going to be inclined to not press the issue.

[chances R]

I think it boils down to : Can you show you did everything reasonably possible to avoid the conflict which in turn still placed you in a situation where you were in imminent threat of death or severe injury. At that time the use of deadly force is justified, just as simply brandishing your firearm would be justified as well. IF you are in such a situation, really who cares what anyone else thinks if you feel that was your only option at the time? To further establish your grounds you need to also immediately contact LEO. Sometimes that is what makes you the 'good-guy'.

[mikegideon]

I attempt to stay situationally aware as well, but as we all know trouble can simply find you.

 

Well... If I was a thug looking for a victim, you are one of the last ones I would pick. No matter what's wrong under the hood, you're a big old boy.

[E4 No More]

Well... If I was a thug looking for a victim, you are one of the last ones I would pick. No matter what's wrong under the hood, you're a big old boy.

LOL! Thanks, Mike.

[JAB]

I'm glad you started this thread, SW.  My situation is similar, especially right now.  I am 'only' 43 and am 5' 11" and weigh 260.  Yes, I am overweight but I am also a 'big guy'.  I also have recurring problems with cardiomyopathy (weak heart function) and other chronic health issues.  Also, I am currently undergoing chemotherapy for colon cancer and the chemo causes some neuropathy, especially cold neuropathy.  In fact, sometimes my hands gets so numb and/or achy or even lock up to the point that I wonder how effectively I'd be able to use a handgun if the need arose, especially one with any, real recoil.  Also, as part of the whole cancer ordeal, I had to have part of my colon removed and currently have a (hopefully reversible) colostomy.  In other words, my guts are currently hacked up and I have a large (now healed) surgical scar.  To me, it would not be too great a stretch to think that one good, solid punch in the gut - which wouldn't necessarily be all that serious a threat to some folks - could tear things loose in there.  That would certainly constitute a risk of death or serious, bodily injury for me.  Further, the effects of chemo as well as cardiomyopathy mean that I'm not going to be running all that fast or far.  I would certainly attempt to extract myself from a situation to the best of my ability but I am not willing to risk dying just because some asshat thinks he has something to prove.

Edited February 13, 2015 by JAB

[E4 No More]

I'm glad you started this thread, SW.  My situation is similar, especially right now.  I am 'only' 43 and am 5' 11" and weigh 260.  Yes, I am overweight but I am also a 'big guy'.  I also have recurring problems with cardiomyopathy (weak heart function) and other chronic health issues.  Also, I am currently undergoing chemotherapy for colon cancer and the chemo causes some neuropathy, especially cold neuropathy.  In fact, sometimes my hands gets so numb and/or achy or even lock up to the point that I wonder how effectively I'd be able to use a handgun if the need arose, especially one with any, real recoil.  Also, as part of the whole cancer ordeal, I had to have part of my colon removed and currently have a (hopefully reversible) colostomy.  In other words, my guts are currently hacked up and I have a large (now healed) surgical scar.  To me, it would not be too great a stretch to think that one good, solid punch in the gut - which wouldn't necessarily be all that serious a threat to some folks - could tear things loose in there.  That would certainly constitute a risk of death or serious, bodily injury for me.  Further, the effects of chemo as well as cardiomyopathy mean that I'm not going to be running all that fast or far.  I would certainly attempt to extract myself from a situation to the best of my ability but I am not willing to risk dying just because some asshat thinks he has something to prove.

Damn, JAB, I'm sorry to hear this. Although I'm not dealing with cancer like you I didn't mention a couple of abdominal surgeries that essentailly land me in the same boat as you if I took one to the gut. I was afraid that if I did mention everything some smartazz on this forum would suggest taking me out and putting me out of my misery. :)

[DaveTN]

It would be great if there was a handbook of what you can and can’t do; but there isn’t because of words like “immediate” “great bodily harm” and the main one “a reasonable person”.

All you need to do is to look at many of the cases we have discussed here or have been in the news.

People that seemed to be defending themselves have gone to prison; people that committed murder have walked free.

We can look at any one specific case and determine why it went to court and why the outcome was what it was. But you can’t really generalize.

I have a plan for myself that I think will keep me out of court in all 50 states should I have the need to shoot someone. I also won’t get in an altercation while I am armed. If I do; I am willing to take an azz whipping before I pull a gun. If I get hurt; so be it, I shouldn’t have been being a dumbazz. If I am attacked without provocation; that’s a whole different story.

Not only do you have responsibility to protect your family; you have a responsibility to stay out of prison and not leave them to fin for themselves because you either misjudged the situation or just did something ignorant.

We live in times where people are rioting over criminals that were either attacking cops or pointing guns at them and being killed by the cops. If you are a HCP holder the dirtbags and liberals will come after you the same as they do with the cops. If you don’t believe that I hope you never have to find out.

[tnguy]

The short version is: mental preparation. It helps condition your brain to act rather than freeze if you've already thought it through - which is a far greater problem than most people are willing to admit to themselves. That's why as a LEO one of the first classes that I took at the MHP Academy was Red Handled Gun which trains you to rapidly transition from yellow/orange to red.

 

For sure. But that's a bit different from case law.

[E4 No More]

For sure. But that's a bit different from case law.

I disagree. Clear case law helps you decide beforehand cutting decision time.