Bullet Points PRINCIPLES OF A SELF-DEFENSE CLAIM – AVOIDANCE
H
ello, fellow bikers. I love fall. The air is crisp, the leaves are sporting their glorious colors and the riding is amazing. As I write this month’s column, I am preparing to get some wind therapy this morning. I hope you are riding plenty right now – because it is going to be winter soon. Have a Happy Thanksgiving!
the curtilage of the residence
Over the past several columns, we have explored the five components of a self-defense claim. In review, these principles are:
Curtilage: 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
1. 2. 3. 4. 5.
Innocence Imminence Proportionality Avoidance Reasonableness
Dwelling: 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
Business: a commercial enterprise or establishment owned by a person as all or part of the person’s livelihood or is under the owner’s control or who is an employee or agent of the owner with responsibility for protecting persons and property and shall include the interior and exterior premises of the business
This month’s column deals with #4 – Avoidance. It is critical, for those of us calling Tennessee home, to understand how your ability to avoid a deadly encounter can jeopardize your selfdefense claim. And while Tennessee is a “stand-your-ground” state, there are potential legal pitfalls to a defense based exclusively on a “no duty to retreat” argument. Finally, while the protections of “Castle Doctrine,” derived from William Blackstone’s “Commentaries on the Laws of England,” provides a great deal of protection while you are in your home, there are restrictions on when you can use force even within your “castle.”
Vehicle: any motorized vehicle that is self-propelled and designed for use on public highways to transport people and property
Avoidance Simply put, if you can safely avoid a potentially dangerous encounter, you should do so. Get away and call the police. Even with the protections Tennessee has codified in law, do not become a victim of a cowboy mentality - as there are limitations to stand-yourground which can land you in prison for a VERY long time.
39-11-611(C)(c) – 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.
Let’s look at the actual Tennessee code regarding your “duty-to-retreat.” 39-11-611(b)(1): …a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other’s use or attempted use of unlawful force. This statue clearly states you must be innocent (you are in a place you are legally allowed to be and not a participant in an unlawful activity), there must be imminence of potential death or maiming and a “reasonable” person would have acted similarly. Notice that three of the five components of a self-defense claim are clearly referenced in this specific code: innocence, imminence and reasonableness. And while this code does not reference proportionality, your force must be proportional – do not use deadly force against an aggressor who is not using deadly force against you. To do so will only provide a prosecutor ammunition (pun intended) to portray you as that “cowboy” alluded to earlier. Castle Doctrine Tennessee provides many safeguards against criminal prosecution when you use force to protect yourself, your family and guests while you are in your “castle.” Your castle is a: residence, dwelling, curtilage, business and vehicle. Residence: a dwelling in which the person resides, either permanently or temporarily, or is visiting as an invited guest, or any dwelling, building or other appurtenance within
These are all areas which fall under the protection of castle doctrine. However, as with stand-your-ground, there are limitations to your ability to claim self-defense while in any of these areas – most importantly, deadly force is never allowed to protect one’s property or real estate. This is clearly spelled out in the following Tennessee statute.
Exceptions to this code can cause your self-defense claim to fail: • If you invited the person into your home as a guest - the AOJ Triad would apply: the person has to have ability and opportunity - and jeopardy has to exist which may cause you death or serious bodily injury • If you are in your home illegally – Eg. You are going through a divorce and your wife/significant other has legal authority to be in said home and has an order of protection against you • If the person cohabits the residence with you – the AOJ Triad again comes into play In summary, stand-your-ground and Castle Doctrine do not provide blanket immunity against prosecution. And stand-your-ground specifically only relieves you of the burden of avoidance – the other four legs, of the five components of self-defense, still apply: Innocence, Imminence, Proportionality and Reasonableness. When it comes to avoidance, commonsense – which is not so common these days – is essential. Until next month, ride often, and keep the shiny side up! Molon Labe, Mike Noirot Note: I am not a lawyer and nothing in this column represents legal advice. My article is based on common sense and many years of studying self-defense.
The views and opinions expressed are those of the authors and do not necessarily reflect the official policy or position of Thunder Roads® Magazine Owners/Publishers. Any content provided by our authors are of their opinion, and are not intended to malign any religion, ethic group, club, organization, company, individual or anyone or anything.
NOVEMBER 2020
ThunderRoadsTennessee.com
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