Some Excerpts from the Tennessee Code Annotated
(9/29/99 it may change from time to time)
Part 6–Justification Excluding Criminal Responsibility
39-11-601. Justification a defense.–It is a defense to prosecutionthat the conduct of the person is justified under this part. (Acts1989, ch. 591, & )
115 General Provisions 39-11-605
Sentencing Commission Comments. This part enunciates the variousprinciples of Tennessee law which excuse or justify otherwiseunlawful conduct. Justification as a defense is consistent withTennessee case law. See May v. State, 220 Tenn. 541, 420 S.W.2d. 647 (1967).
39-11-602. Justification definitions.– The following definitionsapply in this part unless the context otherwise requires:
(1) “Custody” means under arrest by a law enforcementofficer, or under restraint by an officer, employee or agent ofgovernment pursuant to an order of a court:
(2) “Deadly force” means force that is intended orknown by the defendant to cause or, in the manner of its use orintended use, is capable of causing serious bodily injury: and
(3) “Escape” means unauthorized departure from custodyor failure to return to custody following temporary leave fora specific purpose of limited period, but does not include a violationof conditions of probation or parole. (Acts 1989, ch, { 1.)
39-11-603. Confinement as justifiable force.– Confinementis justified when force is justified by this part if the persontakes reasonable measures to terminate the confinement as soonas the person knows it can be done safely, unless the individualconfined has been arrested for an offense.
[Acts 1989, ch. 591, {1.]
Sentencing Commission Comments. This section recognizes confinementas a form of force which may be used whenever justifiable. Thisconcept is based on present Tennessee law which relieves merchants,employees, and officers from both civil and criminal liabilityfor false arrest, false imprisonment or unlawful detention ifthe arrest or detention was based on probable cause.
{ 40-7-116(a), (b), (c). This section is intended to authorizereasonable alternatives to the use of force. Confinement is recognizedas a form of justifiable force; restrictions on the use of forcecontained elsewhere in this part also apply to confinement.
39-11-604. Reckless injury of innocent third person.– Eventhough person is justified under this part in threatening or usingforce or deadly force against another, the justification affordedby this part is unavailable in a prosecution for harm to an innocentthird person who is recklessly injured or recklessly killed bythe use of such force.
[Acts 1989, ch. 591, { 1.]
Sentencing Commission Comments. This section provides thata defendant may be justified in using force against another personbut criminally responsible if that use of force recklessly injuresa third person. The underlying principle is that a defendant’sculpability is to be measured independently for each victim. Thesection is designed to deter reckless conduct that could harminnocent third persons.
39-11-605. Civil remedies unaffected.– The fact that conductis justified under this part does not abolish or impair any remedyfor the conduct that is or may be available in a civil suit.
[Acts 1989, ch. 591,[ 1.]
Sentencing Commission Comments. This section creates a distinctionbetween justifications for criminal and civil law. The defensesin this chapter apply only to criminal law and are not intendedto affect civil liability. See also { 39-11-102(c)
39-11-606 Criminal Offenses
39-11-606 — 39-11-608. [Reserved.]
39-11-609. Necessity.– Except as provided in {{ 39-11-611-
– 39-11-621. conduct is justified if:
(1) The person reasonably believes the conduct is immediatelynecessary to avoid imminent harm; and
(2) The desirability and urgency of avoiding the harm clearlyoutweigh, according to ordinary standards of reasonableness, theharm sought to be
prevented by the law proscribing the conduct. [Acts 1989, ch.591 { 1.]
Sentencing Commission Comments. This section codifies the commonlaw defense of necessity. It excuses criminal liability in thoseexceedingly rare situations where criminal activity is an objectivelyreasonable response to an extreme situation. For, example, necessitydefense would bar a trespass conviction for a hiker, strandedin a snowstorm, who spends the night in a vacant cabin ratherrisking death sleeping in the open.
The defense is limited to situations: (1) where the defendantacts upon a reasonable belief that the action is necessary toavoid harm; and (2) where the harm sought to be avoided is clearlygreater than the harm caused by the criminal act. The defenseis further limited in application to those offenses where it isnot expressly excluded by statute.
Subdivisions (1) and (2) contemplate a balancing between the harmcaused by the conduct constituting an offense, and the harm thedefendant sought to avoid by the conduct. If the harm sought tobe avoided was, by ordinary standards of reasonableness, clearlygreater that the harm actually caused (the offense is justified.
39-11-61-. Public duty. — (a) Except as qualified by subsections(b) and (c), conduct is justified if the person reasonably believesthe conduit is required or authorized by law, by the judgmentor order, of a competent court or other tribunal, or in the executionof legal process.
(b) The succeeding sections of this part control when force isthreatened or used against a person to protect persons({{ 39-11-613),to protect property ({{ 39-11-614 — 39-11-616), or for law enforcement({ 39-11-620).
(c) The justification afforded by this section is available if:
(1) The person reasonably believes the court or tribunal has jurisdictionor the process is lawful, even though the court or
tribunal lacks jurisdiction or the process is unlawful; or
(2) The person reasonably believes the conduct is required
or authorized to assist a public servant in the performance ofthe
public servant’s official duty, even though the servant exceedsthe servant’s lawful authority. [Acts 1989, ch. 591, { 1.]
Sentencing Commission Comments. This section codifies the defenseof public duty, allowing justification under certain limited circumstanceswhile preventing a blanket “following orders” defense.The justification allowed under this section requires a reasonablebelief in the legality of the actions taken, so that defendantswho knowingly disregard the law or exceed their authority aredenied the defense.
Subsection (a) limits the definse to situations where the defendantreasonably believes his or her conduct is lawful. For example,under some circumstances, Tennessee law authorizes law enforcementofficers to enter buildings to execute search warrants or to seizegoods. This section protects law enforcement officers who performthese duties under a reasonable belief that their actions arelawful.
Subsection (b) clarifies that where force is used, the code sectionsgoverning justification of force control. Thus, this section doesnot apply to the use of force.
Subsection (c) protect persons who act under a reasonable (thoughincorrect) belief of the lawfulness of an authority granted bya court or tribunal (any official adjudicatory body) and privatecitizens who assist public servants under a reasonable beliefthe conduct is neccesary or authorized to assist the public servantin carrying out the public servant’s official duties.
39-11-611. Self-defense. — (a) A person is justified in threateningor using force against another person when and to the degree theperson reasonably believes the force is immediately necessaryto protect against the other’s use or attempted use of unlawfulforce. The person must have a reasonable belief that there isan imminent danger of death or serious bodily injury. The dangercreating the belief of imminent death or serious bodily injurymust be real, or honestly believed to be real at the time, andmust be founded upon reasonable grounds. There is no duty to retreatbefore a person threatens or uses force.
(b) Any person using force intended or likely to cause death orserious bodily injury within their own residence is presumed tohave held a reasonable fear of imminent peril of death or seriousbodily injury to self, family or a member of the household whenthat force is used against another person, not a member of thefamily or household, who unlawfully and forcibly enters or hasunlawfully and forcibly entered the residence, and the personusing the force knew or had reason to believe that an unlawfuland forcible entry occurred.
(c) The threat or use of force against another is not justifiedif the person consented to the exact force used or attempted bythe other individual.
(d) The threat or use of force against another is not justifiedif the person provoked the other individual’s use or attempteduse of unlawful force, unless:
(1) The person abandons the encounter or clearly
communicates to the other the intent to do so; and
(2) The other nevertheless continues or attempts to use unlawfulforce against the person.
(e) The threat or use of force against another is not justifiedto resist a halt at a roadblock, arrest, search, or stop and friskthat the person knows is being made by a law enforcement officer,unless:
(1) The law enforcement officer uses or attempts to use greaterforce than necessary to make the arrest, search, stop and frisk,or halt; and
(2) The person reasonably believes that the force is immediatelynecessary to protect against the law enforcement officer’s useor attempted use of greater force than necessary.
[Acts 1989, ch. 591, { 1; 1990, ch. 1030. { 8.]
Sentencing Commission Comments. This section codifies muchof the common law doctrine of self defense. The defense is applicableto the use or threatened use of force and to both ordinary forceand deadly force. Threats are included because under some circumstancesthey constitute offenses.
Subsection (a) allows the justification of self defense to personswho reasonably believe they are imminently threatens with forceor are actually attacked and who react with the force reasonablynecessary to protect themselves. The test of “reasonablebelief” places the emphasis on the defendant’s reliance uponreasonable appearances rather than exposing the defendant to theperil of criminal liability where appearances were deceiving andno actual danger existed. the test is threefold: the defendantmust reasonably believe he is threatened
with imminent loss of life or serious bodily injury; the dangercreating the belief must be real or honestly believed to be realat the time of the action; and the belief must be founded on reasonablegrounds. Under this section, there is no duty to retreat, whichchanges Tennessee law.
Subsection (b) is a restatement of a prior Tennessee statute whichcreated a presumption that a person using force against an intruderin the residence held a reasonable fear of imminent death or seriousinjury.
Subsections (c), (d) and (e) are restrictions to the defense.Subsections (c) and (d) continue the traditional rule that thedefendant claiming justification should be free from fault inbringing on the necessity of using force. Subsection (c) recognizesthat persons who consent to the force used against them are prohibitedfrom utilizing self defense in responding to that use of force.Examples would be mutual combatants or participants in contactsports. The defense, however, is available if the force used againstthe defendant exceeded the
scope of the defendant’s consent.
Subsection (d) also restricts the defense by codifying the traditionalconcept of the initial aggressor. In order to use the defense,the initial aggressor must withdraw or communicate an intent towithdraw and the force must continue despite this communication.See Irvine v. State, 104 Tenn. 132, 56 S.W. 845 (1900); Gann v.State, 214 Tenn. 711, 383 S.W.2d 32 (1964).
Subsection (e) represents a policy decision by the commissionthat the street is not the proper forum for determining the legalityof an arrest. To a large extent, the rule is designed to protectcitizens from being harmed by law enforcement officers. Researchhas shown that citizens who resist arrest frequently are injuredby trained officers who use their skills and weapons to protectthemselves and effectuate the arrest. If the defendant knows itis a law enforcement officer who has stopped or arrested him orher, respect for the rule of law requires the defendant to submitto apparent authority. The justification is restored if the lawenforcement officer uses greater force than necessary under thecircumstances and the defendant acts under reasonable belief thathis or her acts are necessary for self-protection.
Section to Section References. Sections 39-11-611 — 39-11-621are referred to in { 39-11-609.
Sections 39-11-611 — 39-11-613 are referred to in { 39-11-609.
This section is referred to in {{ 39-11-612, 39-11-621, 39-16-602.
Law Reviews. Selected Tennessee Legislation of 1986, 54 Tenn.L. Rev. 457 (1987).
39-11-612. Defense of third person. — A person is justifiedin threatening or using force against another to protect a thirdperson if:
(1) Under the circumstances as the person reasonably believesthem to be, the person would be justified under { 39-11-611 inthreatening or using force to protect against the use or attempteduse of unlawful force reasonably believed to be threatening thethird person sought to be protected; and
(2) The person reasonably believes that the intervention is immediatelynecessary to protect the third person. [Acts 1989, ch. 591, {1.]
Sentencing Commission Comments. This section makes it clearthe right to defend a third person is to be determined in thesame fashion as the right of self defense. Section 39-11-611 governsthe determination of whether a defendant would have been justifiedin using force in self-defense under the same facts and circumstances.If the defendant reasonably believes that intervention is immediatelynecessary to protect the third person, the defendant is justifiedin the same manner as he or she would have been under { 39-11-611.
Section to Section References. This section if referred to
in { 39-11-621.
39-11-613. Protection of life or health. — A person is justifiedin threatening or using force, but not deadly force, against anotherwhen and to the degree the person reasonably believes the forceis immediately necessary to prevent the other from committingsuicide or from the self-infliction of serious bodily injury.[Acts 1989, ch. 591, { 1.]
Sentencing Commission Comments. This section is new to Tennesseelaw. It is designed to remove a possible impediment to the reasonableuse of force to aid another person. It justifies the use of force,but not deadly force, against another to prevent self-inflictedserious bodily injury or suicide. The justification is dependentupon the defendant’s reasonable belief of the necessity of immediateaction.
39-11-614. Protection of property. — (a) A person in lawfulpossession of real or personal property is justified in threateningor using force against another when and to the degree it is reasonablybelieved the force is immediately necessary to prevent or terminatethe other’s trespass on the land of unlawful interference withthe property.
(b) A person who has been unlawfully dispossessed of real or personalproperty is justified in threatening or using force against theother when and to the degree it is reasonably believed the forceis immediately necessary to reenter the land or recover the propertyif the person threatens or uses the force immediately or in freshpursuit after the dispossession; and:
(1) The person reasonably believes the other had no claim of rightwhen the other dispossessed the person; and
(2) The other accomplished the dispossession by threatening orusing force against the person.
(c) A person is not justified in using deadly force to preventor terminate the other’s trespass on real estate or unlawful interferencewith personal property. [Acts 1989, ch. 591, { 1.]
Sentencing Commission Comments. This section affords justificationfor the defenses of protection of both real and personal property.This defense is available to all persons “in lawful possession”and thus applies to owners, lessees,and bailees. The amount offorce reasonably believed to be necessary to terminate the trespassor unlawful interference.
Subsection (b) provides justification for the use of force toreenter land or recapture property under very limited circumstances.the defendant must use or threaten to use force immediately afterthe dispossession and the defendant must reasonably believe theother person had no right to dispossess the defendant. Further,the dispossession must have been accomplished by the use of threatsor force by the other person.
this section is intended to encourage the resort of legal processto recover property in all circumstances except those where immediateself help is likely anyway.
Subsection (c) makes it clear deadly force is never justifiedunder this section. Deadly force may be justified, however, under{ 39-11-611(b).
Section to Section References. Sections 39-11-614 — 39-11-616are referred to in { 39-11-610.
This section is referred to in {{ 39-11-615, 39-11-616.
39-11-615. Protection of third person’s property. — A personis justified in threatening or using force against another toprotect real or personal property of a third person if, underthe circumstances as the person reasonably believes them to be,the person would be justified under { 39-11-614 in threateningor using force to protect the person’s own real or personal property.[Acts 1989, ch. 591, { 1.]
Sentencing Commission Comments. This section justifies theuse of limited force to protect another person’s real or personalproperty. Similar to { 39-11-612, defense of third persons, thisjustification is based upon the defendant’s right to protect hisor her own property under { 39-11-614. This section permits adefendant to use the same force to protect the property of anotherthat he or she could use to protect his or her own property.
Section to Section References. This section is referred to
in { 39-11-616.
39-11-616. Use of device to protect property. — (a) The vjustification afforded by {{ 39-11-614 and 39-11-615 extends tothe use of a device for the purpose of protecting property onlyif:
(1) The device is not designed to cause or known to create a substantialrisk of causing death or serious bodily harm;
(2) The use of the particular device to protect the property fromentry or trespass is reasonable under the circumstances as theperson believes them to be; and
(3) The device is one customarily used for such a purpose or reasonablecare is taken to make known to probable intruders the fact thatit is used.
(b) Nothing in this section shall affect the law regarding theuse of animals to protect property or persons. [Acts 1989, ch.591, { 1.]
Sentencing Commission Comments. This section provides a limitedjustification for the use of a device, such as a hidden trap,to protect property. This rule is substantially consistent withthe common law tort rule. The commission has considered both theimportance of protecting innocent persons (e.g., firefighters,law enforcement officers, and children) and the importance ofprotecting one’s property. Under this section, the use of a devicemust be reasonable, the device must be one customarily used forprotection of property or the user must use reasonable care ingiving warning to probable intruders, and the device must notbe designed or known to cause death or serious bodily injury.
39-11-67 — [Reserved.}
39-11-620. Use of deadly force by a law enforcement officer.–(a) A law enforcement officer, after giving of his identity assuch, may use or threaten to use force that is reasonably necessaryto accomplish the arrest of an individual suspected of a criminalact who resists or flees from the arrest.
(b) Notwithstanding subsection (a), the officer may use deadlyforce to effect an arrest only if all other reasonable means ofapprehension have been exhausted or are unavailable, and wherefeasible, the officer has given notice of his identity as suchand given a warning that deadly force may be used unless resistanceor flight ceases, and :
(1) The officer has probable cause to believe the individualto be arrested has committed a felony involving the inflictionor threatened infliction of serious bodily injury; or
(2) The officer has probable cause to believe that the individualto be arrested poses a threat of serious bodily injury, eitherto the officer or to others unless immediately apprehended. [Acts1989, ch. 591, { 1; 1990, ch. 1030, { 9.]
Sentencing Commission Comments. This section is a codificationof the principles set forth by the United States
supreme court in Tennessee v. Garner, 465 U.S. 1098 (1985). Itis identical to { 40-7-108. Subsection (a) requires a law enforcementofficer to give notice of his or her identity as an officer inorder to be justified in using any force to make an arrest. Theamount of force justified is only that reasonably necessary toaccomplish the arrest.
Subsection (b) allows justification for the use of deadly forcein effecting an arrest under very limited circumstances: (1) allother means of apprehension are exhausted or are unavailable:and (2) where feasible, the officer has given notice both of hisor her identify as an officer and that deadly force may be used;and (3) the officer has probable cause to believe the individualhas committed a felony involving threatened or inflicted seriousbodily injury or poses a threat
of serious bodily injury unless he or she is immediately apprehended.
The Garner decision made drastic changes in the law in Tennesseethat previously allowed an officer to use deadly force if necessaryto effect the arrest of any felon.
Section to Section References. This section is referred toin { 39-11-610.
39-11-621. Use of deadly force by private citizen. — A privatecitizen, in making an arrest authorized by law, may use forcereasonably neccesary to accomplish the arrest of an individualwho flees or resists the arrest; provided, however, that a privatecitizen cannot use or threaten to use deadly force except to theextent authorized under self-defense or defense of third personstatutes, {{ 39-11-611 and 39-11-612. [Acts 1989, ch. 591, {1.]
Sentencing Commission Comments. Tennessee law allows a privatecitizen acting upon his or her own initiative to arrest for anypublic offense committed in the citizen’s presence, when the personarrested has committed a felony, or where a felony has been committedand the citizen has reasonable cause to believe the person arrestedcommitted it.
{ 40-7-109. A citizen who makes an arrest for an offense notcommitted in the citizen’s presence acts at his or her peril.This section implements the arrest laws by permitting the citizento use reasonable force to effectuate the arrest.
It was the consensus of the commission that use of deadly forceby private citizens in effecting arrests should be prohibitedexcept to the extent it would be justifiable as self defense ordefense of others under this part. See {{ 39-11-611 and 39-11-612.