Bullet Points – By Mike Noriot

PRINCIPLES OF A SELF-DEFENSE CLAIM – AVOIDANCE

Hello, fellow bikers. I love fall. The air is crisp, the leaves are sporting their the curtilage of the residence 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! 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 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 1. Innocence person’s home 2. 3. 4. 5. Imminence Proportionality Avoidance Reasonableness 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 Vehicle: any motorized vehicle that is self-propelled and designed for use on public highways to transport people and property pitfalls to a defense based exclusively on a “no duty to retreat” argument. Finally, while the These are all areas which fall under the protection of castle doctrine. However, as with protections of “Castle Doctrine,” derived from William Blackstone’s “Commentaries on the Laws stand-your-ground, there are limitations to your ability to claim self-defense while in of England,” provides a great deal of protection while you are in your home, there are restrictions any of these areas – most importantly, deadly force is never allowed to protect one’s on when you can use force even within your “castle.” property or real estate. This is clearly spelled out in the following Tennessee statute. Avoidance 39-11-611(C)(c) – Any person using force intended or likely to cause death or serious Simply put, if you can safely avoid a potentially dangerous encounter, you should do so. bodily injury within a residence, business, dwelling or vehicle is presumed to have Get away and call the police. Even with the protections Tennessee has codified in law, held a reasonable belief of imminent death or serious bodily injury to self, family, a do not become a victim of a cowboy mentality - as there are limitations to stand-your- member of the household or a person visiting as an invited guest, when that force is ground which can land you in prison for a VERY long time. used against another person, who unlawfully and forcibly enters or has unlawfully and Let’s look at the actual Tennessee code regarding your “duty-to-retreat.” 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 39-11-611(b)(1): …a person who is not engaged in unlawful activity and is in a place occurred. where the person has a right to be has no duty to retreat before threatening or using Exceptions to this code can cause your self-defense claim to fail: force against another person when and to the degree the person reasonably believes • If you invited the person into your home as a guest - the AOJ Triad would apply: the the force is immediately necessary to protect against the other’s use or attempted use person has to have ability and opportunity - and jeopardy has to exist which may of unlawful force. cause you death or serious bodily injury This statue clearly states you must be innocent (you are in a place you are legally allowed • If you are in your home illegally – Eg. You are going through a divorce and your to be and not a participant in an unlawful activity), there must be imminence of potential wife/significant other has legal authority to be in said home and has an order of death or maiming and a “reasonable” person would have acted similarly. Notice that protection against you three of the five components of a self-defense claim are clearly referenced in this specific • If the person cohabits the residence with you – the AOJ Triad again comes into play code: innocence, imminence and reasonableness. And while this code does not reference In summary, stand-your-ground and Castle Doctrine do not provide blanket immunity proportionality, your force must be proportional – do not use deadly force against an against prosecution. And stand-your-ground specifically only relieves you of the burden aggressor who is not using deadly force against you. To do so will only provide a prosecutor of avoidance – the other four legs, of the five components of self-defense, still apply: ammunition (pun intended) to portray you as that “cowboy” alluded to earlier. Innocence, Imminence, Proportionality and Reasonableness. When it comes to Castle Doctrine avoidance, commonsense – which is not so common these days – is essential. Tennessee provides many safeguards against criminal prosecution when you use force Until next month, ride often, and keep the shiny side up! to protect yourself, your family and guests while you are in your “castle.” Your castle is a: residence, dwelling, curtilage, business and vehicle. Molon Labe, Mike Noirot 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 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.