So-called “stand your ground” laws have been in the news recently. A great deal of the commentary has lacked understanding, been misinformed or just plain wrong. Essentially, these laws provide that when a person is threatened with force, they have no duty to retreat before using force to defend themselves. If the threat involves the risk of death or serious injury, the person can use deadly force in self-defense.
The law of self-defense can be either a statute or part of the common law of the state, or even federal government. In 2005, Florida enacted a statutory self-defense law that provided that a person is justified in the use of deadly force and does not have a duty to retreat if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm. Contrary to news reports, there was nothing new about the statute. For over one hundred years, other states did not require a person to retreat before the use of force for self-defense.
In Tennessee, there was no statute on self-defense until 1989. Self-defense was based on case law. In the 1980 case of State v. Kennamore, 604 S.W.2d 856 , our Supreme Court reviewed the law of self-defense in this state and decided there was a duty to retreat before using deadly force, at least in cases outside one’s home. The Court said:
There is a substantial split of authority among the various jurisdictions with respect to whether a person assaulted must retreat before taking the life of his assailant. The common-law rule generally required such a retreat, if reasonably feasible, except in defense of one’s home or habitation or in the discharge of official duty. In a number of jurisdictions, however, it has been held that the victim of an unprovoked assault need not retreat but may stand his ground and repel the attack with whatever force is reasonably required. Homicide resulting from such self-defense is justified. See generally 1 Wharton’s Criminal Law and Procedure §§ 235-240 (R. Anderson ed. 1957); 2 Wharton’s Criminal Law § 126 (14th ed. C. Torcia 1979); 40 Am. Jur. 2d, Homicide §§ 163-165 (1968); Annot., 18 A.L.R. 1279 (1922).
The latter rule, sometimes referred to as the “true man” doctrine, has never been adopted in previous decisions in this state, nor do we think that it represents the better view of the subject. It is true that in Morrison v. State, 212 Tenn. 633, 371 S.W.2d 441 (1963), the Court used language indicating that there is no duty to retreat where the victim of an assault is without fault, is in a place where he has a right to be and is put in reasonably apparent danger of death or great bodily harm. This language, however, was used in a case in which the accused was defending his residence or habitation, and the opinion must be read and construed in light of that fact situation. It does not stand as general authority for the adoption of the “true man” rule in this state. As precedent, we limit it to the defense of one’s home or habitation.
604 S.W.2d at 858-859
This remained the law on self-defense in Tennessee until the criminal code was substantially revised in 1989. (Public Acts 1989, ch. 591). The new statutory self-defense provision, Tenn. Code Ann. § 39-11-611(a) specifically declared there was no longer a duty to retreat before using force:
A person is justified in 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. . . . There is no duty to retreat before a person threatens or uses force.
The simple addition of the last sentence changed the law of self-defense in Tennessee. No longer would juries have to second guess someone on whether they could have safely retreated before using to deadly force.
The self-defense statute, Tenn. Code Ann. § 39-11-611 was again revised in 2007, with some changes to the law of self-defense and the duty to retreat:
- Notwithstanding § 39-17-1322, 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.
- Notwithstanding § 39-17-1322, 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 intended or likely to cause death or serious bodily injury, if:
- The person has a reasonable belief that there is an imminent danger of death or serious bodily injury;
- The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and
- The belief of danger is founded upon reasonable grounds.
The use of force in self-defense is not without limits. For instance, § 39-11-611(e) provides that the threat or use of force against another is not justified:
- If the person using force consented to the exact force used or attempted by the other individual;
- If the person using force provoked the other individual’s use or attempted use of unlawful force, unless:
- The person using force abandons the encounter or clearly communicates to the other the intent to do so; and
- The other person nevertheless continues or attempts to use unlawful force against the person; or
- 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:
- The law enforcement officer uses or attempts to use greater force than necessary to make the arrest, search, stop and frisk, or halt; and
- 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.
Like many areas of the law, self-defense is complicated. The legal nuances are difficult to sort out, even after a fast-breaking, emotion charged confrontation. By deleting the requirement to retreat, the jury does not second guess whether a person under the stress of the threat of death, could have safely retreated.
Questions about self-defense law, or other legal issues, should be directed to a lawyer familiar with the subject.
James E. Wagner concentrates his practice in areas such as personal injury litigation, workers’ compensation, toxic tort litigation, products liability, firearms law, probate, estate planning and insurance. His varied legal experience helps him analyze and resolve issues in all areas of practice for his clients. He has been privileged to represent many of the same clients over my entire career and handles each case with a view toward a long-term relationship. James provides his clients with reliable, dependable service.
