Recent "Carport Break In" Riverside Plantation, West Nashville

[AngryJohnny]

The last couple of nights, multiple cars have been broken into in my neighborhood. I live in Riverside Plantation and every Condo has a 2 car carport. What are my rights when it comes to protecting my cars or my neighbor's cars? 

 

Thanks in advance,

 

aj

 

[Fourtyfive]

Not alot unless your sitting in it, don't shoot anybody that is breaking in one. Not a good senario....

Edited March 8, 2016 by Fourtyfive

[Omega]

The last couple of nights, multiple cars have been broken into in my neighborhood. I live in Riverside Plantation and every Condo has a 2 car carport. What are my rights when it comes to protecting my cars or my neighbor's cars? 

 

Thanks in advance,

 

aj

Just like protecting your home, in TN you are allowed to protect your property with lethal force if necessary. TN Code 39.11.614

[dralarms]

Just like protecting your home, in TN you are allowed to protect your property with lethal force if necessary. TN Code 39.11.614

So you can threaten them and hold them at gun point but ya can't shoot em.

[monkeylizard]

WOAH!!!!

 

Just like protecting your home, in TN you are allowed to protect your property with lethal force if necessary. TN Code 39.11.614

 

That's more wrong than a wrong thing that is incorrect.

 

You can NOT lawfully use lethal force in TN to protect property (including your home). Period. Go Directly To Jail. Do Not Pass Go. Do Not Collect $200.

 

You can only lawfully use lethal force to defend yourself or others from an attacker if there is reasonable fear of losing one's life or suffering serious bodily injury (or have the same fear for another person).

 

Read that 39-11-614  statute again. It says you can use force, not lethal force, to protect property and even then only such force as is necessary to stop the theft or trespass . Para ( c ) even expressly says you can't use lethal force unless allowed to under another law, which means protecting yourself or others from death or serious bodily injury. Serious bodily injury is actually defined in the TCA, so you don't get to decide what is and isn't serious bodily injury.

 

The "castle doctrine" may be what's causing someone to think that lethal force is OK to protect your home. That's an incorrect understanding. Castle doctrine simply says that if the attacker is in your home, you have a presumption of being in fear for your life/serious bodily harm (or the same for another person). That means that away from home you have to prove you were in fear for your life/serious bodily harm or had the same fear for another person if you use lethal force. At home you don't have to prove that, BUT the evidence can prove you were not in fact in fear for your life. If you tie up an intruder and execute him, the evidence will prove that at the time of firing the shot, you were not in fear for your life and you will go to prison for murder. Castle Doctrine is not about protecting your home or your property and it is not a license to kill.

Edited March 8, 2016 by monkeylizard

[Pete123]

You can't shoot someone for property theft.  The appropriate word for that action is murder.

 

Pulling a weapon if you don't feel that your life is in danger is a bad, bad idea. 

[Omega]

So, scenario: You find someone in your garage or carport, a place where you have a right to be and an intruder is present.  What, you think he will just kindly leave the premises when you confront him?  You think that a wiry skinny perp can't do great bodily harm on his way off your premises?  Anytime I confront someone, I am of the mindset that they can and will cause great bodily harm to me or mine.  The TCA does not say you have to allow great bodily harm to come to you before you try and defend yourself.  Sure, you don't shoot him in the back as he is trying to run away or pop him while he is tugging on your stereo but at the same time I am not going to get into physical altercation with an intruder; and I am sure not just going to run away and let him proceed to rob me blind.  So, you confront him, threaten him with force (how I will leave that to your imagination) perp now has a choice to make, laydown and let the law come for him, let the irate homeowner beat the crap out of him, run away, or attack said homeowner because he had the audacity to stop him from making a living...how do you think this scenario will play out? 

 

When you go check to see what all the barking is about, or go check where the noise outside came from do you go armed?  While armed are you going to resort to wrestling an intruder?  The law does make some fine points about what you are allowed and not allowed to do, but the incident will dictate when it comes to either protecting your property or your life, and in most cases both are one in the same when you confront someone that does not want to be confronted.

[Pete123]

Omega,

 

You are describing how most of us on this forum would like it to be.

 

The reality is this.  There are five conditions that have to be met to claim self defense.  The chances of going to jail increase as any of these aren't met.  If you are determined to be the aggressor, then you are in a world of hurt.  The fact that someone is stealing from your garage does not in any way prevent you from being the aggressor.

 

Hearing the dog bark, going out to see what it is, and having that escalate into the perp being shot is a scenario where I don't want the DA deciding whether to prosecute on me.  The truth and what the prosecutor says in court may be two very different things.

 

The law that you quoted above is not how it is practiced in TN.

 

Imagine an ego contest that turns into a road rage incident where the two cars pull over on the side of the road.  Someone winds up being shot.  Regardless of what happened, the person doing the shooting likely will not be able to claim self defense. 

 

I went to a class taught by the top firearms self defense attorney in the country.  One of the big take aways was that you want to have all five requirements for self defense so strong that the DA moves on to something else.  If they pursue it, the best case scenario is that you will go bankrupt paying for a defense.  

[monkeylizard]

The law is clear. You may use as much non-lethal force as is necessary (but no more) to prevent the loss of property or trespassing. You may not lawfully use lethal force to protect property. You may only use lethal force if a reasonable person would be in imminent fear for their life or in fear of sustaining serious bodily injury, or have the same fear on behalf of another person. We do not get to decide whether or not a reasonable person would have that level of fear or not. The DA and then the jury get to do that.

 

You're dang right I'm going to be armed to the teeth when investigating a noise at night. If someone is in my home uninvited I expect they are there to do me and mine harm and the Castle Doctrine supports that reasonable fear. If I'm not in my home, I do not have a legal protection of presumption of that fear. I may have that fear, and it may pass the reasonableness test, but I may still have to prove that fear existed using the facts of the incident.

 

If a person is in the scenario proposed by Omega and they confront the thief:  

• If he runs, the victim can use non-lethal force to restrain him or let him run away and let the cops try to catch him. Lethal force is not lawful.
• If he surrenders, the person can hold him until police arrive. Lethal force is not lawful.
• If he fails to comply with verbal commands, presents a weapon, or makes a threatening advance, then fear of imminent bodily harm or death is reasonable in most cases*.

Personally, I'm not getting into a scuffle over it. I don't have the training or the skills to think I have a decisive advantage in a brawl. I'll keep my distance and issue clear verbal commands. If point 3 above is met, I would personally be in fear for my life.

 

*If the homeowner is a 6'2 280lbs professional MMA fighter and the perp is a 5'3 110 lbs. woman with no weapon and the situation was clear to the homeowner (well lit area, etc.), then a DA and a jury may find it hard to believe that there was reasonable fear of imminent serious bodily injury or death.

Edited March 8, 2016 by monkeylizard

[blewbayou]

I think another important point to make here is this. If you do come around the corner to see a perp stealing from you, but that perp does not see you...You have a decision to make, one is to remove yourself from the situation and call the police, then your insurance to make a claim.
The second is to confront the perp, and at that point aren't you escalating a situation you could have avoided? I feel like at that point you have escalated the situation and it'd be hard to prove self defense.

I've worked hard for what I own, but I'm not going to confront someone who is stealing from me outside my home, until I have been threatened. It's an unfortunate part of the law that really doesn't provide any protections for the owner of the property outside of the locked doors of your house (or car). Edited March 8, 2016 by blewbayou

[JayC]

IANAL but if you look at all of the law in TN, and case law relating to self defense, you'll find a lot of grey area when it comes to stuff like this...

 

For the record, an enclosed garage even if it's not attached to your house likely falls under Castle Doctrine in TN, if they forcibly enter/unlawfully enter the garage, and you find them in there, you likely have 'reasonable belief of imminent death' 39-11-611c and 39-11-611a3.  Even if you 'happen' upon them while they're trying to steal from you.

 

It would be no different than you walk in on them in your home as the plain reading of TCA 39-11-611.

 

And there are examples of this not resulting in charges, but it depends on the details and who the DA in your case is...  not something I'd recommend being the test case for ;)

 

I think another important point to make here is this. If you do come around the corner to see a perp stealing from you, but that perp does not see you...You have a decision to make, one is to remove yourself from the situation and call the police, then your insurance to make a claim.
The second is to confront the perp, and at that point aren't you escalating a situation you could have avoided? I feel like at that point you have escalated the situation and it'd be hard to prove self defense.

I've worked hard for what I own, but I'm not going to confront someone who is stealing from me outside my home, until I have been threatened. It's an unfortunate part of the law that really doesn't provide any protections for the owner of the property outside of the locked doors of your house (or car).

[Pete123]

I'm really glad this topic has come up as there is much mis-understanding regarding the use of deadly force. 

 

After taking the class referenced above, I did some internet research and sent an email to Nashville defense attorney David Raybin asking if I can reach out if needed.

 

Below is his response.  This is a guy who has tried self defense cases and is a defense attorney:

 

"I have had  multiple people ask me to do this. If you are involved in a  self-defense situation the most important thing to do is NOT to use a firearm except as a last resort. People think these stand your ground laws etc are a  license to use  deadly force. They tend to promote violence and injury. My son and I do Second Amendment cases but we also believe  self-preservation can best be achieved by tactical withdrawal as necessary. That said, if you need us then my office number is the second best way to contact me.  The best is by email which my son and I monitor. "

[Omega]

Yea, my instructor was also a lawyer and I have spoken with many a LEO and lawyers, have yet to have one publicly support my point of view; but privately, quite another story.  In NC, while stationed there in the mid 80s I had a dog stolen.  While talking to the officer, SD came up in a conversation, at the time no castle doctrine existed.  You were expected to retreat before lethal force was allowed.  I straight up told him I would not retreat as my front door was between my bedroom and the kids.  He smiled and said, "we normally don't worry too much about perps, just be sure to drag him back in if he falls out".  I took the last part as a joke, but got the feeling that the first part was standard practice.

[Pete123]

Omega, your assertion simply doesn't stand up to scrutiny with me.  That's fine as we don't have to agree.  

 

For the rest of the folks on the forum, this thread has plenty of meat so you read through it and draw your own conclusions.

[Fourtyfive]

As I implied in my first post here , protect property with a phone or baseball bat; if your life is in danger then use a gun. That's the only way you use a gun and stay out of jail; unless your a bad shot....

Edited March 9, 2016 by Fourtyfive

[monkeylizard]

IANAL but if you look at all of the law in TN, and case law relating to self defense, you'll find a lot of grey area when it comes to stuff like this...

 

For the record, an enclosed garage even if it's not attached to your house likely falls under Castle Doctrine in TN, if they forcibly enter/unlawfully enter the garage, and you find them in there, you likely have 'reasonable belief of imminent death' 39-11-611c and 39-11-611a3.  Even if you 'happen' upon them while they're trying to steal from you.

 

It would be no different than you walk in on them in your home as the plain reading of TCA 39-11-611.

 

And there are examples of this not resulting in charges, but it depends on the details and who the DA in your case is...  not something I'd recommend being the test case for ;)

 

Castle Doctrine says you have a presumption of having been in reasonable fear for your life, etc. It's all a matter of who has to prove what in court. In your residence, business, dwelling or vehicle, the prosecuting DA has to prove that a reasonable person would not have had that level of fear. Outside your home, you may have to prove that a reasonable person would have that level of fear.

 

What's your basis for saying that a non-attached enclosed garage falls under castle doctrine? I think you may be right, but I didn't see any statute that says that.

[CommsNBombs]

So much grey area with this.

A carport being on your property and attached to your home sounds like its part of your house - unless it not having walls or made out of brick and mortar plays into that.

My understanding and as I have been led to understand even if they come on your property and are dicking around with your vehicle you cannot even point a weapon/threaten deadly force unless theyre doing the same.

Ill leave my opinion of what I would do out of it, but pretty much your escalation of force matches theirs.

Again, Im not a lawyer

Sent from my SPH-L720 using Tapatalk

[bersaguy]

Over the years I have determined that many laws are written to protect the criminal more than the victim. You must be very careful before acting that you follow every letter of the Protected criminals rights before you kill them. Other wise the victim will be the good/bad guy and you will be the criminal..................jmho  

[AngryJohnny]

Thanks to all! That's a lot of good info...I guess I will go out and buy some pepper spray. I am to old to go to jail...

 

Thanks again!

 

aj

[DaveTN]

The second is to confront the perp, and at that point aren't you escalating a situation you could have avoided? I feel like at that point you have escalated the situation and it'd be hard to prove self defense.

No. You are not escalating the situation; it won’t be escalated unless he does it. If he attacks or threatens you; you can act, if he runs you can’t.

Will you go to trial? Possibly, it depends on the evidence at the scene and the statements of any witnesses.

Not too long ago there was a thread on here about this happening in Smyrna. A guy leaned out his window with a gun and threatened a guy breaking into his car. When the perp ran the guy shot at him. The rounds hit near a neighbor across the street sitting on his porch. The home owner was arrested.

[zapfbroad]

Castle doctrine doesn't extend to vehicles unless you are in the vehicle.

A semi-enclosed carport that resided on a private lot would, like a detached garage, constitute a building or structure within the curtilage of the residence.

A semi-enclosed carport that opens to shared communal traffic-ways as the ones I've seen in River Plantation, would be very questionable though, especially if shared with another resident.

If you shot and killed someone in your carport the burden of proof would be upon you prove that they were there unlawfully and that you had a *reasonable* fear for your life to justify that usage of force. If you only detained them or shot them in such a way as to make it impossible for them to retreat they can allege that they were simply out for a stroll enjoying the seasonable evening weather when you hailed them over to you, off of the community drive-thru area, and then began espousing all manner of deranged ramblings which culminated in you shooting them unjustifiably. Not all car thieves look like a hoodlum from gta5 with trench coats, face tatts and kit bags for boosting vehicles. Some are just testing door handles looking for often unlocked vehicles to pilfer personal possessions but otherwise might be dressed like a mall power walker. Also know that citizen's arrest is a very touchy area subject opening you up to false imprisonment, wrongful detention, etc.. if the alleged charged is not proven. Additionally, you cannot, use a gun to enact a citizen's arrest in most places. News report often will hail some gun owning hero, who foiled a crime and detained someone at gunpoint until officers arrived. This is contrary to the TN AG's opinion governing licensed security guards and citizen's arrest, op. 03-018. Though I don't believe it's been tested but in essence you shift from a self-defense usage to going with the intent to be armed ...'available for use in the carrying out of purposes either offensive or defensive'. That's very subjective and theoretical so don't get hung up on that point.

 

 

Deadly Force is NEVER PERMITTED to protect personal property or real estate.

Tennessee Code Annotated section 39-11-614 (c) clearly states that “Unless a person is justified in using deadly force as otherwise provided by law, a person is not justified in using deadly force to prevent or terminate the other’s trespass on real estate or unlawful interference with personal property.”

 

You can call Metro and reference the previous incidents and ask for additional patrols to be conducted. They want this person worse than you do anyways. Plenty of MNPD/NFD call Bellevue home.

You can work with your neighbor if it is shared to help with the costs to install motion sensors in the carport that will activate additional lighting, alarms or photographic devices that make it immediately apparent any perp needs to move on to shadier destinations. You may be able to write off some as expense, request the HOA help with acquisition or installation costs, or contact your insurance to see if it meets eligibility requirements for additional discounts based on theft deterrence, etc.

AngryJohnny:

This story ends a whole lot better when you take some small steps to deter and/or help the apprehension of the suspect through information rather than...ending up as the 'angry' middle-aged white guy in the burbs who shot the gentle giant peacefully trying to find his high school study buddy's condo. Great topic to explore some of the finer details, it's unfortunate your community is beset by this problem. Excellent reminder that settings of safety are often illusory... thieves must will travel to where the work is too. Welcome to the forum and keep us posted if you have any updates on the situation.

[JayC]

Of course, it's only the presumption, but that seems to go a long way in TN.  As for how is a garage covered under castle doctrine...  Lets take a look at the law:

 

39-11-611c is where our 'castle doctrine' comes from in TN.

Any person using force intended or likely to cause death or serious bodily injury within a residence, business, 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, business, dwelling or vehicle, and the person using defensive force knew or had reason to believe that an unlawful and forcible entry occurred.

 

Now, lets assume for discussion that none of the exceptions in 39-11-611d apply, which would not in the described scenario.  While residence and dwelling seem to be pretty limited in scope they're not, lets look at how they're defined for the purposes of the self defense law.

 

First dwelling - 39-11-611a5 - Which would seem based on the plain reading to include all buildings on your property that have a roof over it and is capable of use by people.  That includes a garage.

"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;

 

Second lets look at residence - 39-11-611a7 - This would also seem to cover any building within the curtilage of the residence...  lets take a look at that definition.

"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

 

Curtilage - 39-11-611a3

"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;

 

Clearly the legislative intent if to cover all buildings in and around your home, included unattached garages.  As both the definition of dwelling and residence in that part of the law clearly define.

 

If you hear a bump in the night and walk out into your hallway, see somebody you have reason to believe is there unlawfully (with few exceptions) has the same legal protections as if:  You hear a bump in the night, go outside and find somebody in your garage who you believe is there unlawfully...  In both cases under the law you're assumed to have a reasonable belief of imminent death or serious bodily injury.  As I read the law, and as clear by most cases of self defense in and around the home are handled here in TN.  You're right, that is just an assumption, but that assumption is a very high bar for any DA considering charging you...  They have to prove beyond a reasonable doubt that you knew the person in question was not a threat to you, or that you had no reason to believe they were in your home/garage unlawfully.  

 

In the example being used here, where you catch somebody breaking into your car, who in all likelihood has a criminal record, it's going to be virtually impossible to prove to a jury you didn't have a reasonable belief that person was there unlawfully.  And unless there are some strange circumstances surrounding the shooting itself - like shooting the guy on the ground execution style...  it's going to be next to impossible to over come the assumption of reasonable fear.

 

That's why most DA's won't touch these cases with a 10 foot pole...  

 

Now with that said, I personally wouldn't go looking for trouble, I wouldn't go outside in the middle of the night to knowingly confront a criminal breaking into my unattached garage or car... but if you think you hear a raccoon in your garage, and go to investigate and find a thief there instead, under TN law you have the same rights to self defense as if you came face to face with the thief standing in your kitchen.

 

Castle Doctrine says you have a presumption of having been in reasonable fear for your life, etc. It's all a matter of who has to prove what in court. In your residence, business, dwelling or vehicle, the prosecuting DA has to prove that a reasonable person would not have had that level of fear. Outside your home, you may have to prove that a reasonable person would have that level of fear.

 

What's your basis for saying that a non-attached enclosed garage falls under castle doctrine? I think you may be right, but I didn't see any statute that says that.

Edited March 9, 2016 by JayC

[Spiffy]

We need a law like Texas's Mischief At Night.

[Omega]

Of course, it's only the presumption, but that seems to go a long way in TN.  As for how is a garage covered under castle doctrine...  Lets take a look at the law:

 

39-11-611c is where our 'castle doctrine' comes from in TN.

 

Now, lets assume for discussion that none of the exceptions in 39-11-611d apply, which would not in the described scenario.  While residence and dwelling seem to be pretty limited in scope they're not, lets look at how they're defined for the purposes of the self defense law.

 

First dwelling - 39-11-611a5 - Which would seem based on the plain reading to include all buildings on your property that have a roof over it and is capable of use by people.  That includes a garage.

 

Second lets look at residence - 39-11-611a7 - This would also seem to cover any building within the curtilage of the residence...  lets take a look at that definition.

 

Curtilage - 39-11-611a3

 

Clearly the legislative intent if to cover all buildings in and around your home, included unattached garages.  As both the definition of dwelling and residence in that part of the law clearly define.

 

If you hear a bump in the night and walk out into your hallway, see somebody you have reason to believe is there unlawfully (with few exceptions) has the same legal protections as if:  You here a bump in the night, go outside and find somebody in your garage who you believe is there unlawfully...  In both cases under the law you're assumed to have a reasonable belief of imminent death or serious bodily injury.  As I read the law, and as clear by most cases of self defense in and around the home are handled here in TN.  You're right, that is just an assumption, but that assumption is a very high bar for any DA considering you charge you...  They have to prove beyond a reasonable doubt that you knew the person in question was not a threat to you, or that you had no reason to believe they were in your home/garage unlawfully.  

 

In the example being used here, where you catch somebody breaking into your car, who in all likelihood has a criminal record, it's going to be virtually impossible to prove to a jury you didn't have a reasonable belief that person was there unlawfully.  And unless there are some strange circumstances surrounding the shooting itself - like shooting the guy on the ground execution style...  it's going to be next to impossible to over come the assumption of reasonable fear.

 

That's why most DA's won't touch these cases with a 10 foot pole...  

 

Now with that said, I personally wouldn't go looking for trouble, I wouldn't go outside in the middle of the night to knowingly confront a criminal breaking into my unattached garage or car... but if you think you hear a raccoon in your garage, and go to investigate and find a thief there instead, under TN law you have the same rights to self defense as if you came face to face with the thief standing in your kitchen.

Very well stated; most laws are written to CYA the law enforcement people.  They do not want to make it out to seem that they want you to go shooting anyone on your property on sight.  Having said that, most know that criminals can and will escalate a simple burglary trying to keep from getting caught, and having homeowners trying to guess whether they can defend themselves is not a good thing.  As for me, I am not saying I am going to start shooting the second I see a thief, but as I am armed most of the time, I am not going to get into a physical confrontation with someone of whom I know absolutely nothing about.  They may be a trained martial artist, hopped up on meth, well armed or just plain pumped up with adrenaline which can make that 80lb 4 foot nothing female into a killing machine.  Underestimate your opponent and you die, simple as that.

[monkeylizard]

Thanks JayC. I figured the garage stuff was in there somewhere, but I couldn't find it. :up: