Self Defense: When Can You Legally Use Deadly Force?
Here’s the scenario:
You’re at home in bed with your wife. Your kids are in the next room asleep. Around 1:00 am you and your wife are woken up by a loud noise coming from downstairs. Your wife urges you to go check it out. “It’s probably just the dog,” you say. “Honey,” your wife says as she pushes you out of bed, “we don’t own a dog.”
You put on your robe and grab your pistol from out of the safe that has a picture of the 2nd Amendment on it. It’s dark in the house so you grab a flashlight as well. You creep around the corner of the hall overlooking the staircase. “I can’t believe I’m up at one in the morning” you think. You ease down the stairs, being extra careful not to make a sound. As you approach the living room you take a look out the window towards your front yard. There’s a man standing in the driveway and he’s loading your brand new set of golf clubs in a van. “That piece of $%&” you whisper.
Just as you’re about to confront the thief you hear a noise behind you. You turn around and come face to face with another man and he’s wearing a ski mask. Your mind quickly remembers that picture of the 2nd amendment on your gun safe and you think to yourself, “I’m going to shoot both of these no good criminal a$$ holes.” “I’m going to shoot them both and get away with it….it’s self defense!!” Or is it……..
Thus, the question is: When can you legally use deadly force as a means of defense?
Let me first mention the book Deadly Force – Understanding Your Right to Self Defense. It’s a great read on self defense. It offers somewhat of a different point of view on the subject. Give it a try!!!
Going back to the question at hand….
This is great question that I get asked quite often. It’s also an area of law about which many people have, for lack of a better phrase, misguided views. But here’s what you need to know:
First, let’s start with your property. Can you use deadly force to defend your property? Well, the short answer….NO!! You can never, never, never use deadly force to simply defend property. It doesn’t matter how valuable the property is. It doesn’t matter how much the property means to you on a personal level. You can’t use deadly force.
When I was in law school, we studied a case about a guy who set up traps (so to speak) in his shed to protect his property from thieves. Actually, he had fixed a shotgun to fire if the door to the shed was opened. As you might be predicting, a thief attempted to break into his shed one night and was killed by the “shotgun-spring-trap.” And, if memory serves, the man ended up being prosecuted for the thief’s death.
That case is a perfect illustration of the fact that you simply can’t defend your property with deadly force. So, going back to the fact pattern above, you could get into some major trouble if you shot the thief attempting to steal your golf clubs. To put it simply DON’T DO IT!!!
But when can you legally use deadly force?
In Tennessee a person can legally use deadly force as a means of self defense 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.
Basically this means that if you feel like your life is in immediate danger, you can use or threaten to use deadly force. But let’s go back to the fact pattern above. You’ve encountered an intruder in your own home. And, for arguments sake, lets say its a person half your size, scrawny, and unarmed. In other words, it’s somebody you could easily take in a street fight. Can you use deadly force against him? Well…..Yes and No.
Most people think that if someone breaks into your home you automatically can use deadly force against them. And while that may be true in part, it’s not quite accurate.
In Tennessee 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. . . .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.
So there’s a presumption that you had a reasonable belief your (or your family’s) life was in imminent danger if someone breaks into your home. However, a presumption, in many instances can be rebutted by evidence pointing to the contrary.
So, going back to the fact pattern, encountering an intruder wearing a ski mask in your home at one in the morning would likely be a situation where the use of deadly force would be more than justified (in my opinion). Even if you could easily take him in a fist fight (and, most likely, even if he was unarmed). On the other hand, encountering a girl scout in your living room at two in the afternoon would probably not be a situation where deadly force could be used (even if she broke in).
What about a trespasser? Can you use deadly force against a trespasser? Well, in Tennessee, unless a person is justified in using deadly force as otherwise provided by law, a person is not justified in using deadly force to prevent or terminate the other’s trespass on real estate or unlawful interference with personal property. Basically this means that if someone is trespassing on your property, you can’t use deadly force unless you reasonably believe that there is an imminent threat of death or serious bodily injury.
So, as an example, if you see a trespasser in your front yard holding a bat (a deadly weapon) you can’t use deadly force (unless your head is within range of the bat). But, if you see a trespasser in your front yard pointing a gun at you, then deadly force would likely be justified.
And if you are justified in using deadly force, there’s no duty to retreat first. In Tennessee, you do not have to retreat before using deadly force (assuming it’s justified). But if you’ve provoked another person into using deadly force against you (i.e., by using deadly force against them first) your use of deadly force will likely not be justified. So don’t go around starting gun fights with folks.
There you go. The basics of when you can use deadly force as a means of self defense. Hopefully you’ll never be put in this situation. But, if you are remember this: If you reasonably believe your life is in danger, do all you can to defend it. If you reasonably believe your family’s life is in danger, do all you can to defend it. But if someone is simply stealing your golf clubs, call the police.
Good Legal Health.
The Juris Doctor