Presumed To Be In Fear: Presumptions and the Law of Self-Defense in Tennessee

In 1989, Tennessee substantially revised its criminal laws. The revisions changed everything from definitions used in the statutes to sentencing. One of the changes strengthened the law of self-defense and defense of others, when the use of force occurred in one’s home:

The importance of the presumption is that without it, for the defense of self-defense to apply, there must be evidence that the person using force was threatened by another. In cases involving the use of deadly force, the threat must involve the risk of death or serious bodily injury. The evidence of the might come from the defendant’s testimony or be apparent from other witnesses in the case.

Tennessee’s self-defense law was again revised in 2007. These changes broadened the locations where a person was presumed to be in reasonable fear of death or serious bodily injury:

The terms “residence”, “dwelling”,” business” and “vehicle” have technical meanings under the statue. For instance, a “residence” is 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. 39-11-611(a)(7). The “curtilage” is 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. 39-11-611(a)(3).

A “dwelling” is 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. 39-11-611(a)(5). A dwelling might include a camper or recreational vehicle.

A “business” is 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. 39-11-611(a)(1).

Note that the presumption applies to an owner of the business and an employee or agent “with responsibility for protecting persons and property”, not just any employee. That does not mean that an employee defending cannot protect himself or others at the business, just that he would not have benefit of the presumption and there must be evidence of the threat of death or serious injury to justify deadly force.

The most interesting definition is that of a “vehicle”, which means any motorized vehicle that is self-propelled and designed for use on public highways to transport people or property. 39-11-611(a)(8). Note that to gain benefit of the presumption, the “vehicle” must be “designed for use on public highways”. This section of the statute would apply to a pick-up truck, but not to a golf cart.

The presumptions are not without limits. Under 39-11-611(d), the presumptions do 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.

Section (e) further provides that the threat or use of force against another is not justified:

1. If the person using force consented to the exact force used or attempted by the other individual;
2. If the person using force provoked the other individual’s use or attempted use of unlawful force, unless:
   1. The person using force abandons the encounter or clearly communicates to the other the intent to do so; and
   2. The other person nevertheless continues or attempts to use unlawful force against the person; or
   3. To resist a halt at a roadblock, arrest, search, or stop and frisk that the person using force knows is being made by a law enforcement officer, unless:
      1. The law enforcement officer uses or attempts to use greater force than necessary to make the arrest, search, stop and frisk, or halt; and
      2. The person using force reasonably believes that the force is immediately necessary to protect against the law enforcement officer’s use or attempted use of greater force than necessary.

Tennessee also recognizes the right to use force for the protection of third persons. Tenn. Code Ann. § 39-11-612 provides:

1. Under the circumstances as the person reasonably believes them to be, the person would be justified under § 39-11-611 in threatening or using force to protect against the use or attempted use of unlawful force reasonably believed to be threatening the third person sought to be protected; and
2. The person reasonably believes that the intervention is immediately necessary to protect the third person.

For a private citizen in Tennessee, deadly force is only authorized for protection of self and others. Unless a person is justified in using deadly force as otherwise provided by law (such as self-defense or defense of others), a person is not justified in using deadly force to prevent or terminate a trespass to real property or to protect personal property. Tenn. Code Ann. § 39-11-614(c). Likewise, a private citizen cannot use or threaten deadly force to accomplish an arrest. Tenn. Code Ann. § 39-11-621.

As you can see the law of self-defense is highly technical. Even after an incident, it may be difficult to apply the law to the facts. If the facts are in dispute, things are even more difficult. But unlike contracts or business transactions, self-defense situations rapidly develop and there is no time to consult a lawyer before acting. As Justice Holmes said in a self-defense case before the Supreme Court, “Detached reflection cannot be demanded in the presence of an uplifted knife.”

The use of deadly force can be (and usually is) a terrifyingly stressful experience. After all, for most people, being threatened with the immediate risk of being killed or seriously injured is an uncommon and unnatural experience. A person using force, especially deadly force, will be judged by the reasonableness of the action. There are no quick and easy answers in this area of the law. The best advice, given by many self-defense instructors, is “stay away from stupid people, stupid places and doing stupid things.” While avoidance is the best practice, sometimes violence comes to you. In such cases having a foundation in the law, as well as ability in the means of defense, will allow you to make more reasonable decisions before taking action.