Potential Self-Defense Scenario


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apostle83
August 24, 2013, 12:02 PM
I maintain my offices in a two story building. When I first started leasing there, it was a decent area. It is less so now, but it is convenient and damn it, get off my lawn.

My dad also maintains his offices there. He has a permit to carry, but, until a month ago, didn't carry most of the time.

About a month ago, he was in his office around 8:00 pm. He heard four "very sharp knocks. Then, it was like my door exploded." Four thugs saw him, dropped things they had stolen from other offices, and took off running. They went down the stairs and out the lobby. Surveillance footage showed that they immediately turned around and tried to get back in, but were locked out. When the police came, they were gone.

The perps have since been arrested. They were getting in buildings via air vents over mechanical rooms. They terrorized the dozen businesses in our building.

Here is the question that this background information has been leading up to. According to a cousin who is a leading defense attorney in the Memphis area, if my dad had been carrying and had shot the perps, he would have "found out what it's like to be on the wrong side of the bars in Memphis. Race politics would've kicked in hard."

While I agree that race politics would have kicked in, I believe that Tennessee has excellent law favoring business owner who have to defend themselves. The perps broke in three hours after business hours after forcing their way into the building, kicked down the door from the mechanical room into a common area, and then kicked down a locked door into a private office.

Our cousin has probably defended in court zero innocent defendants.

My feeling is that in the end, TN law would have prevailed and that my dad wouldn't have ever seen the inside of a court room if he had fired in self-defense. This is assuming he didn't do anything stupid like firing after they fled.

What are your thoughts? I ask because while we have made massive physical security improvements, we have three businesses in this building.

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Sam1911
August 24, 2013, 12:17 PM
Self defense laws exist for a reason, and that reason is to excuse any criminal guilt for the homicide of another person if that person forced you to react or accept death or grevious injury.

Individuals breaking and entering an occupied space where they had no right to be, in overwealming numbers, no less? The shooter would fully expect to take a ride downtown in custody, as that's generally part of the investigative process, but charges pressed would be extremely unlikely given your description of the situation.

Race can certainly play a role in very questionable cases of claimed self defense where the facts are not so clear. In this case? There seems to be no reason at all to expect that.

Now if he had, in your words, done something "stupid" (tried to hold them there and ended up shooting them when they tried to flee, for example) all bets are off. Still not a race issue, though.

Frank Ettin
August 24, 2013, 12:39 PM
...Individuals breaking and entering an occupied space where they had no right to be, in overwealming numbers, no less? The shooter would fully expect to take a ride downtown in custody, as that's generally part of the investigative process, but charges pressed would be extremely unlikely given your description of the situation...In general true. One will usually be justified resorting to lethal force when someone is unlawfully and forcefully entering, or has unlawfully and forcefully entered, a premises.

However, here:...Four thugs saw him, dropped things they had stolen from other offices, and took off running. They went down the stairs and out the lobby...At that moment the justification for the use of lethal force becomes a good deal more doubtful.

See this thread (http://www.thehighroad.org/showthread.php?t=721597) for an overview of basic use of force law.

apostle83
August 24, 2013, 03:40 PM
Exactly. What I told him was that if he had been firing as they advanced to him, he would be justified. He was convinced though that if he had fired at all that there would be hell to pay for it.

We are very happy for the way things worked out, but I don't want him to be too scared to use his weapon if it is appropriate.

9mmepiphany
August 24, 2013, 04:01 PM
...Four thugs saw him, dropped things they had stolen from other offices, and took off running. They went down the stairs and out the lobby...At that moment the justification for the use of lethal force becomes a good deal more doubtful.
That was my first thought also.

The key words were, "saw", dropped", and "took off running"; which when taken together read much like retreating and fleeing , which usually blunts the term justification.

The other side of that coin are words like "advancing in a threatening manner"

apostle83
August 24, 2013, 04:10 PM
These are all good thoughts.

Basically, if they were facing him and walking towards him, threat.

If they were turning, non-threats.


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spottedpony
August 24, 2013, 05:21 PM
In general, the use of deadly force is justified when a person has a reasonable belief his or her life or the life of a third party is in jepordy. A scumbag fleeing as you discribed poses no threat.

leadcounsel
August 24, 2013, 06:29 PM
It's really an easy concept.

1) If you are shooting to stop an IMMEDIATE honest fear of serious violence against YOU or another innocent person, you may shoot. You get more latitude if the perps have broken into your home or business than you do if you are in public (e.g., are they somewhere where they are authorized or not). You also get more latitude if they have numbers and/or weapons.

2) If you are shooting because you are upset or they are taking your 'stuff' then you are gambling with the law.

Deanimator
August 24, 2013, 08:24 PM
Race can certainly play a role in very questionable cases of claimed self defense where the facts are not so clear. In this case? There seems to be no reason at all to expect that.
I'm Black.

Anybody who lets somebody harm them out of fear of being accused of being a "racist" is a fool.

BSA1
August 25, 2013, 09:29 AM
Three basic elements that must be present before you may use lethal force. These three elements are called Ability, Opportunity, and Jeopardy.

Ability means that the other person has the power to kill or to cripple you.

Opportunity means that the circumstances are such that the other person would be able to use his ability against you.

Jeopardy means that the other person’s actions or words provide you with a reasonably-perceived belief that he intends to kill you or cripple you.

It is important to realize that any two of the elements may be present in a lot of common interactions. The presence of only two elements does not justify using deadly force. This isn’t as complicated as it sounds, and it is mostly just common sense.

It is also important that even if the elements are present it does not mean you are required to use deadly force. Other factors such as the political climate of your community, age of the aggressor, race of the aggressor are all important to consider.

I know of a incident where a white police officer chose not to return gunfire and allowed the perp to get away when he was shot at by a teenage black male simply because he did not want to go through trial by political and public opinion for shooting what would have been portrayed as the shooting of a young minority father who was working on completing his GED so he could find a job and support his family.

Frankly the burglary rate in this country would be much lower if citizens were allowed to legally shoot like a generation ago. One of the reasons we don't see strikes/work slow downs; i.e. "blue flu" by the Police is the property crime rate radically drops when citizens are left alone to defend themselves. It seems citizens are not restricted by political and department policies and giving Miranda warnings.

X-Rap
August 25, 2013, 11:04 AM
turned around and tried to get back in, but were locked out.
This is the part that caught my eye and should be of importance to you and your father.
Obviously these thugs had a change of heart and decided to go back in and finish the job.
No one could have known that from your fathers position that night but in hind site I would thank my lucky stars that the door locking mechanism worked.

apostle83
August 25, 2013, 11:08 AM
I have learned a few interesting things from this thread. The main thing is that how you describe what happens is as important as what actually happened.

I made a mistake when I used the word "immediately" for example. They didn't leave immediately, they left after they saw him. Talking to dad some more last night, they took a couple more steps towards him, stopped, and left. In his mind, that was immediately.

TN law says that when someone breaks into your place of business, you can assume that all three criteria (in TN they are ability, intent, and motive are the criteria and they can all be assumed upon a breakin). However, a Shelby county judge had said "screw that." (Shelby County Judgr Christ Craft). That's where we are. :/

I'm left wondering if a legitimate self defense case in Shelby County TN would be turned into an issue of race if a white defender neutralized multiple young black assailants who died.


Posted with my iPhone using Tapatalk and the AT&T network. What's in your wallet?

Bubba613
August 25, 2013, 12:05 PM
Memphis is another world. Even so no prosecutor is going to put a legitimate business owner whose building is getting robbed up on trial for shooting the perps. Not unless it was simply egregious, like he chased them into the parking lot and shot them there.

9mmepiphany
August 25, 2013, 01:57 PM
I have learned a few interesting things from this thread. The main thing is that how you describe what happens is as important as what actually happened.

I made a mistake when I used the word "immediately" for example. They didn't leave immediately, they left after they saw him. Talking to dad some more last night, they took a couple more steps towards him, stopped, and left. In his mind, that was immediately.
...and it could easily be interpenetrated as such. Leaving after seeing him, could easily be seen as immediate...why would they leave before they saw him or before they were challenged?

Something to bear in mind is that once something is said, it can't be "unsaid"

lemaymiami
August 26, 2013, 08:19 AM
Read all the legal arguments (as well as the practical arguments) in this thread. Here's the advice I gave any ordinary citizen regarding deadly force in my years on the street.... You shoot to protect your life when you have no other choice, period. You shoot to protect the life of another - once again, if you have no other choice. If the BGs are running away there's no need to shoot, ever. The vast majority of B&E types are only looking to score and leave. Anyone that has entered into your business or home and then comes toward you in a threatening manner has called the play -and that's just how it goes in life or death situations.

As far as what happens after the use of deadly force -anything is possible. Provide enough info to let responding officers know you were defending your life and call your lawyer...

In the only shooting situation I was ever involved in, my Department had me doing a re-enactment within the hour at the scene (and I knew at the time that the BG had died from my one shot). Within several hours after a thorough preliminary investigation... the lead investigator called the on-call state's attorney to run the case by him.... Before he could cite all of the surrounding circumstances - the attorney stopped him and asked what race the shooting officer was, then asked what race the "victim" was... When told that both of us were caucasian.... he asked "What's the problem?" If I hadn't been in the room listening to the speaker phone I would never have believed it (all of this occurred in 1979)... Like I said, what happens after a shooting can be hard to predict - but if you only shoot when you have no other choice (defend yourself or die...) then at least you're on the right side of the situation at the beginning.

NavyLCDR
August 26, 2013, 12:10 PM
I am surprised nobody has based anything upon what Tennessee law says about it. OK, not really surprised....

Tennessee Code, Title 39, Chapter 11, Part 6:

39-11-611. Self-defense.

(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.

Seems pretty clear to me. Kicking the door in and forcibly entering a building or vehicle is AUTOMATIC justification for the lawful occupants of that building or vehicle to use deadly force, in Tennessee. With a few non-applicable exceptions:

(d) The presumption established in subsection (c) shall not apply, if:

(1) The person against whom the force is used has the right to be in or is a lawful resident of the dwelling, business, residence, or vehicle, such as an owner, lessee, or titleholder; provided, that the person is not prohibited from entering the dwelling, business, residence, or occupied vehicle by an order of protection, injunction for protection from domestic abuse, or a court order of no contact against that person;

(2) The person against whom the force is used is attempting to remove a person or persons who is a child or grandchild of, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used;

(3) Notwithstanding 39-17-1322, the person using force is engaged in an unlawful activity or is using the dwelling, business, residence, or occupied vehicle to further an unlawful activity; or

(4) The person against whom force is used is a law enforcement officer, as defined in 39-11-106, who enters or attempts to enter a dwelling, business, residence, or vehicle in the performance of the officer's official duties, and the officer identified the officer in accordance with any applicable law, or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

In Tennessee, the use of deadly force would even be justified if the perpetrators were fleeing, assuming the lawful occupants of the building or vehicle were attempting a citizens arrest to detain the perpetrators for law enforcement:

39-11-621. Use of deadly force by private citizen.

A private citizen, in making an arrest authorized by law, may use force reasonably necessary to accomplish the arrest of an individual who flees or resists the arrest; provided, that a private citizen cannot use or threaten to use deadly force except to the extent authorized under self-defense or defense of third person statutes, 39-11-611 and 39-11-612.

Citizens arrest is in Title 40, Chapter 7, Part 1:

40-7-109. Arrest by private person -- Grounds.

(a) A private person may arrest another:

(1) For a public offense committed in the arresting person's presence;

(2) When the person arrested has committed a felony, although not in the arresting person's presence; or

(3) When a felony has been committed, and the arresting person has reasonable cause to believe that the person arrested committed the felony.

(b) A private person who makes an arrest of another pursuant to 40-7-109 -- 40-7-115 shall receive no arrest fee or compensation for the arrest.

Make sure and read the rest of 40-7 regarding citizens arrest. Very interesting indeed.

Frank Ettin
August 26, 2013, 12:41 PM
39-11-611. Self-defense.

(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, ... 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... ..Seems pretty clear to me. Kicking the door in and forcibly entering a building or vehicle is AUTOMATIC justification for the lawful occupants of that building or vehicle to use deadly force, in Tennessee. With a few non-applicable exceptions:...Except you don't understand the legal meaning and effect of a presumption.

A presumption is a rule that affects evidence and burden of proof in court. Ordinarily, one who asserts something in court will have the burden of proving, by presenting good evidence, that certain facts supporting that assertion are true. But sometimes the law might allow one of those facts to be accepted as true without specific evidence of that fact if the party with the burden of proof shows that certain other facts are true. So the party might be entitled under a rule of law to have fact A presumed to be true if facts B, C, and D are shown to be true, even if the party produces no direct evidence that fact A is true.


Presumptions are generally rebuttable.


Evidence that an assailant broke off and withdrew can be sufficient to rebut a presumption that a person attacked was in reasonable fear of death.


It is poor practice and highly risky to rely on statutory language alone, without both adequate legal training to understand the nuance and context and also looking into applicable case law to see how the terms of the statute have been applied by courts.

...I'm left wondering if a legitimate self defense case in Shelby County TN would be turned into an issue of race if a white defender neutralized multiple young black assailants who died...Actually, sometimes for any number of reasons a legitimate defensive use of lethal force will have grave consequences for the defender, even when ultimately exonerated. For example --

This couple (http://www.stltoday.com/news/local/crime-and-courts/article_e5733da4-9156-11e0-bec5-0019bb30f31a.html), arrested in early April and finally exonerated under Missouri's Castle Doctrine in early June. And no doubt after incurring expenses for bail and a lawyer, as well as a couple of month's anxiety, before being cleared.


Larry Hickey (http://www.armedcitizensnetwork.org/images/stories/Hickey%20Booklet.pdf), in gun friendly Arizona: He was arrested, spent 71 days in jail, went through two different trials ending in hung juries, was forced to move from his house, etc., before the DA decided it was a good shoot and dismissed the charges.


Mark Abshire (http://thefiringline.com/forums/showthread.php?t=391091) in Oklahoma: Despite defending himself against multiple attackers on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal meat-grinder before finally being acquitted.


Harold Fish (http://www.haroldfishdefense.org/), also in gun friendly Arizona: He was still convicted and sent to prison. He won his appeal, his conviction was overturned, and a new trial was ordered. The DA chose to dismiss the charges rather than retry Mr. Fish.


Gerald Ung (http://www.thehighroad.org/showpost.php?p=7359920&postcount=34): He was attacked by several men, and the attack was captured on video. He was nonetheless charged and brought to trial. He was ultimately acquitted (http://abclocal.go.com/wpvi/story?section=news/crime&id=7960513).


Some good folks in clear jeopardy and with no way to preserve their lives except by the use of lethal force against other humans. Yet that happened under circumstances in which their justification for the use of lethal force was not immediately clear. While each was finally exonerated, it came at great emotional and financial cost. And perhaps there but for the grace of God will go one of us.


And note also that two of those cases arose in States with a Castle Doctrine/Stand Your Ground law in effect at the time.

So there can be good reason to avoid using lethal force if it would be possible to do so safely -- such as when the threat has broken off and has withdrawn.

garymc
August 27, 2013, 01:53 AM
Your father was lucky. A couple of points about the situation: It could be argued that when the perps broke in initially, they expected the place was unoccupied, being a business and after hours. This might make them seem slightly less dangerous. When they tried to get back in, they knew better.

apostle83
August 28, 2013, 03:54 PM
Thanks to the new replies.

Kleanbore
August 28, 2013, 05:01 PM
Posted by NavyLCDR: In Tennessee, the use of deadly force would even be justified if the perpetrators were fleeing, assuming the lawful occupants of the building or vehicle were attempting a citizens arrest to detain the perpetrators for law enforcement.Nope.

39-11-621. Use of deadly force by private citizen.

A private citizen, in making an arrest authorized by law, may use force reasonably necessary to accomplish the arrest of an individual who flees or resists the arrest; provided, that a private citizen cannot use or threaten to use deadly force except to the extent authorized under self-defense or defense of third person statutes, 39-11-611 and 39-11-612.

NavyLCDR
August 29, 2013, 04:14 AM
Nope.

"39-11-621. Use of deadly force by private citizen.

A private citizen, in making an arrest authorized by law, may use force reasonably necessary to accomplish the arrest of an individual who flees or resists the arrest; provided, that a private citizen cannot use or threaten to use deadly force except to the extent authorized under self-defense or defense of third person statutes, 39-11-611 and 39-11-612."

I was probably mistaken. I originally read the statute to say "except to the extent that would have been authorized..." Now I see that it means that if the individual is attempting the citizens arrest, they can only use or treaten deadly force if the situation evolves into a present one that meets the requirements of 39-11-611 and 39-11-612. Turning and fleeing does not presently meet those conditions. But, if in the act fleeing, the perpetrator stops and turns around with a gun in their hand, the situation changes.

BLB68
August 30, 2013, 01:04 AM
Good rule of thumb: Never try to make a citizen's arrest or detain anyone. Let the police collect them after the fact. Simplifies a whole lot of things.

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