Security guard shooting highlights confusion over and “traps within” Tennessee’s “no retreat” law

This weekend, in the early morning hours of Sunday December 10, 2017, armed private security officers appeared to have been involved in a shooting incident which left a patron of a hookah bar in East Nashville dead in the parking lot of the establishment according to various news reports (Fox17Tennessean, WKRN).

As part of the WKRN report, the mother of the deceased Cloud IX hookah bar patron says she saw at “least 28” cartridges in the parking lot.  Metro Police are investigating whether the four (4) involved who apparently were involved in the shooting were acting in self-defense.

This killing brings into context a poorly worded section of the Tennessee self-defense statute (Tenn. Code Ann. Section 39-11-611) that TFA has discussed with legislators in the past regarding its concerns over how the statute could be too harshly applied and/or how it creates confusions for civilians and law enforcement when “seconds matter”.

The problem is language in the statute which states “a person who is not engaged in unlawful activity” that creates a class of citizens, depending on their individual circumstances, who do not get to rely on Tennessee’s “no retreat” standard that was initially enacted in 1989.  The problem language surfaced in 2007 with an NRA approved amendment that was opposed by TFA.

What is the problem?

Its the phrase “engaged in unlawful activity”.   What does that mean?  With this language, who knows whether they have a duty to retreat or not?

On November 21, 2017, the Tennessee Supreme Court issued a new opinion on the issue of when and under what circumstances the statutory “right” of self-defense is available. The opinion is State of Tennessee v. Antoine Perrier , W2015-01642-SC-R11-CD.

As summarized by the Court, these are the issues:

We granted the defendant’s application for permission to appeal in this case with direction to the parties to particularly address the following issues: (1) the meaning of the phrase “not engaged in unlawful activity” in the self-defense statute, Tennessee Code Annotated section 39-11-611, and (2) whether the trial court or the jury decides whether the defendant was engaged in unlawful activity. We hold that the legislature intended the phrase “not engaged in unlawful activity” in the self-defense statute to be a condition of the statutory privilege not to retreat when confronted with unlawful force and that the trial court should make the threshold determination of whether the defendant was engaged in unlawful activity when he used force in an alleged self-defense situation. We further conclude that the defendant’s conduct in this case constituted unlawful activity for the purposes of this statute. * * * * We affirm the judgments of the trial court and the Court of Criminal Appeals, albeit on separate grounds.

The key holding of this case may be that the Court concluded that a person who is not engaged in “unlawful activity” has no duty to retreat (assuming all other factors are satisfied) before resorting to deadly force in self-defense but that a person engaged in “unlawful activity” is in a different circumstance and that such person has an affirmative duty to retreat before resorting to deadly force in self-defense,

In this case, the Court did not expand upon what activities fall within the scope of the Legislature’s poorly chosen phrase “engaged in unlawful activity”. In the case, the defendant was referenced as being a felon in possession of a firearm and the court spent almost no time on the issue of whether that satisfied the term “engaged in unlawful activity”. What the court held was simply if a defendant is engaged in “unlawful activity” that the duty to retreat is imposed and required but its not required otherwise.

So what is “unlawful activity” under the statute? Would it include for example in a carjacking case not having current tags, an insurance card or even a valid driver’s license? If you are at home, would “unlawful activity” include perhaps code violations that are “unlawful” such as perhaps having your grass be too tall in Nashville or parking on the grass rather than in a driveway? The Court acknowledged but found it unnecessary to determine in this case whether there has to be a relationship between the unlawful activity and the self-defense claim:

The defendant maintains that any unlawful activity by a defendant asserting self-defense must have a causal nexus to his perceived need to defend himself. The State responds that the statutory language does not admit a reading that includes a causal nexus. It is unnecessary to resolve this issue to decide the case before us.
Taking the Cloud IX shooting from this weekend. Lets assume of the potentially 4 security officers involved, that 3 are engaged at that time in some kind of unlawful activity.  Perhaps one of them had allowed his state armed guard certification/license to expire (or was carrying a weapon not covered by the certification), that another was trespassing on adjacent property at the time of the shooting, and that one had illegally parked their patrol car in a fire zone when the shooting occurred.  Assume that only 1 had absolutely no “unlawful activity” occurring at all.
In that scenario, under the Supreme Court’s analysis, are all 4 security officers treated the same with respect to the issue of “no duty to retreat”?
It could be argued by a zealous Davidson County prosecutor that 3 of the security guards were “engaged in unlawful activity” and had a duty to retreat if possible rather than to return fire.  However, one of the guards (the one with no unlawful activity occurring) might no duty to run away and could return fire to protect himself and the patrons.
The point of this is that criminal laws must be clearly written, simple to understand and capable of being applied consistently when seconds matter. That is simply now what exists in Tennessee today and its pretty easy to figure out why. Now the question is whether the Republican controlled Legislature will set aside the problem of “political correctness” and write laws that are simple and unambiguous.

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