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Editorial


Front Page - Friday, July 7, 2017

'Stand your Ground' isn’t that simple


State law might not protect 'good guy with a gun' from legal jeopardy



It’s a sunny Saturday morning in Bellevue as 10 women register for the required class that will allow them to get Tennessee handgun-carry permits.

Two have never fired a gun before; one has owned a gun for six years and fired it once. Many are taking the class to be better able to protect themselves and their families. More than half of gun owners nationally say protection is a primary reason they own their weapons.

“I think most people, from an early age, have an innate notion they have a right to protect themselves,” says Nashville attorney John Harris, who has taught and lectured on the use of deadly force and volunteers as executive director of the Tennessee Firearms Association. But getting from there to what is legal to do in self-defense is complicated.

What these women will not learn on this Saturday is how they can legally use their gun to protect themselves, their home or their family without the possibility of going to jail.

In fact, legal experts say, Tennessee’s laws are so open to interpretation that two people engaged in identical self-defense shootings could be treated very differently by police, prosecutors and the courts.

People tend to believe they won’t be charged with a crime if they shoot an intruder in their home. But that’s not an automatic conclusion under state law.

Tennessee is among 32 so-called “stand your ground states” in which people don’t have to retreat before using force to defend themselves. But the law isn’t simple to apply.

“The hope is you never need to use (a firearm),” says Bob Allen, director of training at the Royal Range gun range and store in Bellevue where the women’s carry-permit class took place. “People need as much training as they can get. It decreases the chance of doing something inappropriate.”

John Martin, owner of the Shooter’s Depot, an independent gun store and range in Chattanooga, says interest in firearms rises when people experience fear, as many in Chattanooga did in 2015 when a gunman killed four U.S. Marines and one U.S. Navy sailor at two military sites.

Enrollment in the Shooter’s Depot’s carry permit classes spiked after the homicides.

Martin says more than 5,000 students took carry-permit classes from his business in 2015, compared with 3,200 last year.

Firing range membership is down slightly this year but range attendance, by both members and their guests, is strong.

In Tennessee, more than 594,000 people held handgun carry permits across the state as of June 2, according to state Department of Safety data. That includes 32,665 people with carry permits in Hamilton County and nearby Marion and Sequatchie counties as of the beginning of June. More than 28,000 people have carry permits in Hamilton County.

In Tennessee, more than 594,000 people held handgun carry permits as of June 2, according to state Department of Safety data.

The Tennessee Bureau of Investigation reported 541,000 background checks during 2016 for guns purchased from federally licensed vendors. About 96 percent of these transactions – 517,129 – were approved. These numbers don’t include guns legally purchased from private persons.

The state self-defense statute covers both use of force and threatened use. Self-defenders cannot themselves be engaging in illegal activities and must have a right to be where they are. They must reasonably believe that force is needed immediately for protection, they must use a proportionate amount of force and they need not retreat before using force, the statute states.

Even though the law doesn’t contain the words “stand your ground,” it’s considered that type of law because it doesn’t require retreat.

‘Reasonable’ fear

A separate provision on using deadly force states defenders also must reasonably believe there’s an imminent danger of death or serious bodily injury. Again, retreat is not required.

Finally, the Tennessee statute offers additional protection for defenders who are inside their residence, business, dwelling or vehicle against someone has unlawfully and forcibly entered it.

In this case, defenders are presumed to reasonably believe they’re in imminent danger of death or serious bodily injury and can use deadly force without retreating to protect themselves, their family, household members and invited guests.

With the presumption, defenders don’t have to first prove their reasonable belief in danger of death or serious bodily harm. A prosecutor, however, can offer evidence that there was no reasonable belief.

There are exceptions to using deadly force in the home, as, for example, when defenders use force against someone they knew or should have known was a law enforcement officer.

What amounts to reasonable fear of death or serious bodily harm depends on the circumstances, attorneys say.

“It’s obviously very much grounded in the facts of each individual situation, so it’s not possible to give a general answer,” explains Andrew Jay McClurg, professor of law and Herff Chair of Excellence at the University of Memphis School of Law.

“A subjective fear is not sufficient,” McClurg continues. “It has to be a ‘reasonable’ fear as determined by the objective external circumstances. In other words, it would not be enough that (a person) was personally in fear for his life if a ‘reasonable person’ would not have been.

“If a couple of young males come up to me at night on the street and I’m all alone, I might very well be in great fear, but unless there were additional facts showing I was in imminent danger of death or serious bodily harm, it would be unreasonable to shoot them,” he explains.

Disrespect doesn’t cut it

Perceiving you have been shown “disrespect” isn’t enough to use deadly force, another professor states.

“In no state, including stand your ground states, is it permissible to use deadly force against someone who merely insults you, or looks at you aggressively. Even if the person threatens to punch you, using deadly force in response would usually be disproportionate, although it would depend on the facts,” says Christopher Slobogin, who holds the Milton R. Underwood Chair in law and is director of the Criminal Justice Program at Vanderbilt University.

The legal right to self-defense doesn’t absolve people from all liability related to an incident.

“You do have to take into consideration that other people are around. You may not be found guilty of using deadly force against an attacker, but the right of self-defense doesn’t extend to injuries to innocent third parties or to property,” Nashville attorney Harris points out.

Harris explains it’s not self-defense if you are defending yourself but accidentally hit someone else. That accidental shooting isn’t self-defense.

Another Tennessee statute states a person “shall not be charged with or convicted of a violation” if the person used a handgun in justifiable defense of himself or another person while a crime was being committed against the other person, Harris explains.

Tennessee courts have ruled, however, that only a judge or jury can determine whether self-defense was justifiable and that a defender can still be charged and prosecuted in this type situation, he adds.

The Tennessee legislature considered this year a bill to make it harder for prosecutors to charge people acting in self-defense. It failed in committee.

In hearings on the bill, available as online videos on the state legislature’s web site, a Chattanooga-area legislator expressed concern that the bill “lets the criminal tell the police how to prosecute the case.”

There appeared to be confusion over whether lawmakers intended the bill to cover civil or criminal liability, and legislators were concerned over the bill’s effect on criminal liability.

Police response

Generally speaking, if someone calls 911 to report they have shot someone who broke into their home, police will be involved.

They’ll come to the house, talk to the person who fired the shot, talk to witnesses and gather evidence from the scene, says Knoxville Police Department Public Information Officer Darrell DeBusk. Evidence can include surveillance videos, ballistics tests and blood samples to test for impairment.

“There are so many factors on the front side of an investigation,” he says, adding the facts often aren’t clear cut, so prosecutors can’t make decisions immediately.

Police also will contact the district attorney’s office during the investigation to let them know what has happened. Police conduct the investigation, and prosecutors ultimately decide whether to prosecute anyone, DeBusk says.

“We work closely with the DA’s office,” he continues. Often, cases in which someone is claiming self-defense can go either way. Prosecutors “may not be able to make a decision for days, even weeks, to see if charges are made.”

Sean F. McDermott is an assistant attorney general in Knoxville and public information officer with the Knox County District Attorney’s office. He explains that “when a fatal shooting occurs, our office assigns a veteran prosecutor to review the case and work closely with the investigating agency.

“Once the investigation is completed, the prosecutor must analyze the evidence through the lens of Tennessee’s self-defense statute,” McDermott says in an email.

“In the scenario … involving an intruder into the home, the law creates a presumption that the homeowner had a reasonable belief of death or serious bodily injury. The prosecutor will view the evidence, keeping that presumption in mind, and checking for any arguable exceptions to that presumption before ultimately making a decision whether to seek charges.”

A person is not likely to be prosecuted if they kill a stranger who has entered their home or attacked them with no provocation in public, says Laura Dykes, an attorney with the Nashville Public Defender’s office, responding in an email.

The likelihood of being arrested increases when the parties know each other because it raises issues of possible motive for the killing beyond stand your ground, she says.

‘Victims on either side’

Cathy Gurley, chief executive officer of You Have The Power, a Nashville victims’ advocacy and rights group, adds stand your ground laws “make me very cautious (because of) how fast these incidents can escalate.

While you may have the best intentions, you don’t really know how you are going to react when you’re surprised or half-asleep.

“We look at some of the incidents even here recently, how it’s going from an encounter to a death within minutes,” she continues.

“Obviously, people have the right to own guns. What we’re really concerned with is how they’re used for the sake of our community and for the sake of preventing more victimizations. There are victims on either side of a shooting.”

Allen, the retired Nashville police officer who teaches firearm classes, says obtaining a carry permit isn’t enough.

Gun owners need to go the extra step and take additional classes or one-on-one instruction so they’re comfortable using a handgun.

People who have taken the handgun permit class at Royal Range can next take a handgun-carry class, he adds. Other classes include home defense, self-defense for women and a civilian Taser class.

“When you got your driver’s license at 16, you didn’t go out the next day and race at Daytona,” he says.

Memphis law professor McClurg similarly urges gun owners to take self-defense training and develop a defensive shooting plan to follow in their homes.

With guns, people make the mistake of thinking “I have a gun, so now I’m safe,” he notes.

“Where do they keep it?

“How long will it take to access it?

“These are crucial questions in self-defense.”

Moral obligation

He also says gun owners have a moral obligation – and in some circumstances, such as access by minors, a legal obligation – to store their guns safely to prevent access by unauthorized users.

An estimated one-third of all traced crime guns were previously stolen from cars or residences, he says. Many accidents and adolescent suicides occur because of unsecured guns.

As the Saturday class winds down, people file out of the classroom having passed the carry-permit test.

Single mom Stephanie Dettloff attended the class with a friend.

“It was very helpful to be hands-on with a gun without the magazine before going on the range,” she said.

She took the class to get familiar with her weapon “so I have confidence if anything happens.” She says she bought her gun for protection.

Dettloff’s friend, Jami Saunders, said her father was a police officer and she grew up with guns in the house. She now is married with young sons who are getting interested in guns, and she wants to teach them best practices.

The most surprising bit of information she took from the class was how gun laws change every July in Tennessee.

“I think it works well,” instructor Allen says of Tennessee’s self-defense law. “It’s kind of restrictive for a good reason, so people don’t act inappropriately.”