Since Helene devastated parts of Tennessee and the southeast, individuals, families and businesses have had to deal with robbers, thieves and looters. These storm victims need and want to know what level of force they can use to protect not only their lives but their homes, lands, businesses, inventory, and personal property. Many think that they already know the answer and are shocked to find out that they are wrong.
The short answer is that deadly force under Tennessee law can only be used to protect human life and then only if there is an imminent fear or death or serious bodily injury. Tennessee Code Annotated § 39-11-611. Non-lethal force can be used to protect your home, lands, businesses and personal property but you cannot use deadly force in Tennessee to protect those assets. Tennessee Code Annotated § 39-11-614. Finally, although Tennessee has something that some might classify as a “castle doctrine” it also prohibits the use of deadly force when used to protect the home, lands, businesses or other personal property interests. Under Tennessee law, if someone uses “deadly force” in an instance where it is prohibited then such use could easily be charged as an assault, aggravated assault or even a homicide – all with potential felony charges much higher than the looter likely would have faced.
When Tennessee Firearms Association issued these reports to help Tennesseans and particularly the storm victims understand that Tennessee’s use of force laws may not be what they expected, some Tennesseans apparently reached out to their elected Legislators for clarification or confirmation. This is the story of one such contact.
On October 3, 2024, an individual who had received the Tennessee Firearms Association’s October 2, 2024, email blast sent an email to his Tennessee state senator (a Republican serving parts of the state that were impacted by Helene) with questions and with a request that this Senator take action in 2025 to change Tennessee law. Part of his email to his Senator stated:
Tennessee’s Legislature has tied the hands of victims by forcing them to stand by without the ability to protect their homes, lands, or the property from thieves, robbers, burglars and looters. To that extent, the Republican controlled General Assembly has victimized the innocent again. These laws should be changed so that citizens, even if not in an emergency, can effectively defend themselves, their lands, their homes and their properties from those who are willing to risk their lives to engage in criminal activity.
It is hard for me to believe that a body that represents the people would even consider this as an option, much less make it law. Please make this your personal priority to change this legal condition in 2025.
Later on October 3, the Senator wrote back. However, the Senator’s reply was largely non-responsive to the statements and requests of the constituent. The Republican Senator’s initial reply stated:
Thank you for reaching out to me about this. I am not a lawyer but I have taken a look at your concerns and have compared them to current code. Copied below are the statutes referenced in your email with highlighted portions relating to the use of force and the use of deadly force.
[The Senator’s response did copy several sections of Tennessee’s statutes that were addressed in the TFA’s reports but the Senator did not comment on them]
The concerned Tennessee constituent responded to his Senator on October 7:
I’ve considered what you sent and highlighted. I’m not a lawyer either, but my concern is that the law allows for self-defense, but not protection of property.
Self-defense (human life), yes if ALL THE CONDITIONS are met. Defense of real estate or property – no.
Finally, on October 9, 2024, the Republican Senator responded in more detail to the concerns that were raised by the constituent. It appears that the Senator’s response may, in material respects, actually be a response that the Senator received from the Legislature’s “legal department”. The Senator’s response stated, in relevant part:
Copied below is the response I received from our legal department.
Best regards,[Senator’s name omitted]
The presumption you have cited below is contained within the self-defense statute. If [constituent name omitted] is inside his residence and someone enters the residence and attempts to steal his belongings, then yes the presumption would apply.
In response to his statement that the law does not allow for the defense of property, I would point out that the protection of property statute states in subsection (c) as follows:
39-11-614. Protection of property.
(a) A person in lawful possession of real or personal property is justified in threatening or using force against another, when and to the degree it is reasonably believed the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.
(b) A person who has been unlawfully dispossessed of real or personal property is justified in threatening or using force against the other, when and to the degree it is reasonably believed the force is immediately necessary to reenter the land or recover the property, if the person threatens or uses the force immediately or in fresh pursuit after the dispossession:
(1) The person reasonably believes the other had no claim of right when the other dispossessed the person; and
(2) The other accomplished the dispossession by threatening or using force against the person.
(c) 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.This means that if the person is justified in using deadly force to defend themselves or others, then they are also justified in using deadly force to defend their property.
It might be helpful for [constituent name omitted] to talk with his district attorney general as to how these statutes are used in the criminal justice system.
Any amendment to the law to allow the use of deadly force against trespassers without a requirement of reasonable belief of imminent death or serious bodily injury could have unintended consequences. [remainder of response omitted]
There are several issues related to the Senator’s responses that should be noted by Tennessean’s and that have already been frustratingly noted by the constituent who forwarded this to TFA.
First, the Senator’s initial response on October 3, 2024, was entirely unresponsive. It did not address the constituent’s written concerns and questions. Further, it did not indicate what the Senator’s position on this issue was. Finally, it did not state what the Senator would or would not do in the next legislative cycle.
Second, the Senator’s response on October 9, 2024, appears to be not the Senator’s position on this matter but instead the position of an unidentified, unelected individual in the “legal department.” That independently might be expected but the answer is misleading if not simply wrong.
While the Senator’s October 9, 2024, email does correctly identify one of three relevant statutes – Tennessee Code Annotated § 39-11-614. However, it omits Tennessee Code Annotated § 39-11-611 and Tennessee Code Annotated § 39-11-621 each of which were addressed in the constituent’s initial email on October 3, 2024. All three of those statutes must be considered collectively to answer the question “can a Tennessean use deadly force to protect her home, her lands, her business and/or other items of personal property?
Part of the problem is that the Tennessee Legislature has a proven history of writing inconsistent and frequently conflicting statutes. Even when this problem has been brought to the attention of the Republican controlled Legislature over the last 15 years, these ambiguities and conflicts are allowed to remain and, in some instances, have been made worse with unconstitutionally vague amendments. (Consider William Lamberth’s amendment to Tennessee Code Annotated § 39-17-1306 in Public Chapter 467 (2017)).
The Senator’s October 9, 2024, reply concludes:
This means that if the person is justified in using deadly force to defend themselves or others, then they are also justified in using deadly force to defend their property.
Thus, this Senator has advised a constituent that if the person is faced with an imminent fear of death, serious bodily injury or grave sexual abuse, that deadly force is not only justified to terminate that threat to a human but it is also justified to defend property.
That is simply not the law nor is it a reasonable interpretation of a series of statutes on the question of when is the use of “deadly force” justified under Tennessee law. Tennessee law sets an unmistakable threshold for the use of deadly force (including brandishment) and that standard is set forth in Tennessee Code Annotated § 39-17-1311(b)(2). That threshold to the use of deadly force ties the use to the necessity of defending human life from an imminent threat of death or serious bodily injury:
(2) Notwithstanding § 39-17-1322, a person who is not engaged in conduct that would constitute a felony or Class A misdemeanor 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:
(A) The person has a reasonable belief that there is an imminent danger of death, serious bodily injury, or grave sexual abuse;
(B) The danger creating the belief of imminent death, serious bodily injury, or grave sexual abuse is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.
The application of this statute has been addressed by the Tennessee Court of Appeals in at least one reported decision – State v. Clifton, 880 S.W.2d 737 (Tenn. Crim. App., 1994). In that case, an individual was being tried for homicide. The court summarized the facts, relevant here, that the defendant was hired by a pawn shop owner to spend the night randomly in the pawn shop apparently because of concerns of burglary. The defendant was spending the night in the pawn shop when he heard one or more individuals breaking in and that they were in the pawn shop. He fired two warning shots into the ceiling and then a third shot at about 5 feet high into a wall. The third shot apparently hit one of the burglars who died outside. The defendant claimed it was both self-defense and also defense of property. The court of appeals rejected, as did the jury, the self-defense claim and also the claim that deadly force was permissible under Tennessee law to protect property.
The concern is that the Senator’s reply unequivocally states that deadly force can be used to defend real or personal property if there is imminent fear of death or serious bodily injury to a human – however, the set of code sections provide otherwise. What the Senator’s conclusion misreads is subsection (c) of Tennessee Code Annotated § 39-11-614 which makes clear that the use of deadly force must be “justified … as otherwise provided by law” which means it is only justified under Tennessee Code Annotated § 39-11-611(c) to defend human life.
For example, if a crime victim is faced with a burglar and the burglar both creates a threat of imminent death or serious bodily injury to a human and also is attempting a theft or robbery, then deadly force could be used to terminate the threat of death or serious bodily injury. But, if the threat of death or serious bodily injury ends yet the robbery or looting persists (for example, the looter or thief has seized the items of personal property and is leaving), then deadly force cannot be used. In reality, the statutory scheme only allows the use of deadly force so long as necessary to protect human life – it never justifies the use of deadly force to defend property.
Oddly enough, this example was part of a scene involving Denny Crane several years ago when he was faced with an armed robber. In Denny Crane’s example, had the mugger taken the watch and wallet and turned to run before Crane shot, Crane would not under Tennessee law have been justified in using deadly force.
We have intentionally not identified the state Republican Senator responsible for this bad advice – yet. We hope that the Senator will reach out to both the constituent(s) and to the Tennessee Firearms Association with a pledge to support the change in the law to allow victims to defend their lives, their homes, their businesses and their property by whatever means reasonably necessary. Indeed, it is not the crime victim that potentially brings the issue of deadly force into the formula but it is instead the criminal who would be knowingly choosing to risk his life in order to rob, steal or loot another person’s assets.
In addition, we want to compliment the Tennessean who, having read the information distributed by TFA through its free email information system, reached out to his Senator and took action to determine whether the Senator agreed that the current law is wrong (he did not) and also insisted that the Senator take action in 2025 to change the law.
This Senator is not the only problem because, if that were the case, there are others who would be able to vote to fix this problem with Tennessee law. The REAL problem is that the Republican leaders in the Legislature and the apparent majority of Republican legislators in Tennessee appear to be of the same disposition as this Senator – they do not support your rights as a crime victim nor the clear requirements of the constitution. In fact, Senator Joey Hensley and Representative Jay Reedy filed SB601/HB510 that would have addressed this issue in the last legislative session. No other Senator joined Senator Hensley as a co-sponsor. On Rep. Reedy’s proposal, only Representatives Monty Fritts, Brian Richey, Susan Lynn and Jody Barrett signed on as co-sponsors. The bill was killed by the Senate Judiciary Committee when it sent the bill to “General Subcommittee.” Why no other support from the supermajority of Republicans? That is a question that each of them need to answer. For those running for re-election in November, perhaps they need to answer those questions NOW so that you will know how to vote.
What can you do?
Do as the individual in this real life example did – contact your legislators and demand to know a) where they are on this issue and b) what they plan to do in 2025 to address it. If you are fortunate enough to get answers, please forward their responses to Tennessee Firearms Association.
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