When is the use of lethal force legal in the United State? In every state of the union, lethal force can be used to protect an innocent party from an imminent threat of death or serious bodily injury. But is that the only time? A recently signed bill in Tennessee defines other situations where deadly force can lawfully be used within the state.
Use of Force
Let me start by pointing out, I am not an attorney. I do not offer legal advice, only my analysis of the legal and constitutional issues presented. I recommend seeking legal counsel for any questions I present here.
There’s a line from the Spiderman comic books: “With great power comes great responsibility.” Self defense and the use of force are great powers, and come with a great responsibility. More often than not, self defense is discussed in the context of the Second Amendment, and our right to keep and bear arms.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
U.S. Constitution, Amendment II
Just as there is more to the Second Amendment than self defense, there’s more to self defense than the tool you use. The use of force exists along a spectrum. For example, the Tennessee Code Annotated (TCA) §39-11-614 states:
(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.
Tenn. Code Ann. § 39-11-614
Notice, the section of the law does not authorize deadly or lethal force, only the degree of force reasonable to prevent someone’s trespass or interference with real or personal property. For example, if someone enters your property I would think it reasonable to block them, forcefully if necessary, to prevent them from going any further, even if only to guide them off of your property. If someone steals your bag, I would find it reasonable to physically detain them, both to return your property and to wait for law enforcement to arrive. The later however, sounds more like TCA §39-11-614:
(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.
Tenn. Code Ann. § 39-11-614
Tennessee law also allows you to use force to reenter your land or retrieve your property that was unlawfully taken from you. And there are limits here as well. For example, the use of force must be immediate or in fresh pursuit. In other words, if someone steals your car, you cannot go to their house a week later and threaten force to retrieve it. If you pursue the person who has unlawfully deprived you of your property, you can use reasonable force during that time. So if someone steals a woman’s purse, and you chase them, you can use reasonable force to stop and detain them for law enforcement. Again, reasonable force, not lethal force is allowed. This is where HB 1802 enters the picture.
Deadly Force
Before HB 1802 was signed into law, deadly force could not legally be used to prevent a property crimes.
(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.
Tenn. Code Ann. § 39-11-614
Meaning it was not lawful to use deadly force to stop someone from trespassing on your property, unless it was justified elsewhere in the law. Neither was it lawful to use deadly force to stop someone committing property crime. There had to be another threat, recognized by Tennessee law, for the use of deadly force to be legally justified. Under HB 1802, subsection (c) was replaced with:
(c)
(1) Except as provided in subdivision (c)(2), a person is justified in using deadly force against another:
(A) If the person would be justified in using force against another under subsection (a) or (b);
Tennessee House Bill 1802
There are several criteria necessary to escalate from the use of force to the use of deadly force under HB 1802. First, the person must be justified in using force under subsection (a) and (b) which I’ve already covered.
(B) When and to the degree the person reasonably believes deadly force is immediately necessary to prevent or terminate the other’s actual or attempted trespass; arson; damage to property, including damage to livestock; burglary; theft; robbery; or aggravated cruelty to animals;
Tennessee House Bill 1802
Now deadly force can be used, but only if it’s immediately necessary to stop an actual or attempted trespass, arson, or damage to property or livestock. The question is when is it reasonable to believe that deadly force is necessary to prevent these things?
Notice what deadly force can only be used to protect. Let’s start with trespass, arson, and damage to property. Is there a scenario where these actions could reasonably be responded to with deadly force? Since arson could threaten other people, that makes sense, but what about trespass and property damage? I could see a situation where someone who is trespassing on your property or damaging your property, could be considered enough of a threat to warrant deadly force if the trespasser is armed, acting aggressively, or threatens you. If the actions of the person would lead them to be a threat, like in a carjacking, that would warrant the threat or use of deadly force. If the property being damaged is protecting young children, that could warrant deadly force.
Notice that damaging livestock and aggravated cruelty to animals could also be justifications for the use of deadly force. Livestock is more than someone’s property, it is how they make a living. If someone were hunting or trapping in a way that endangered livestock, that could lead not only to the loss of the animals, but the food on the owners table. But again, the force must be immediately necessary; no finding the person later and using force to stop future threats.
There are other limitations to when the use of deadly force can be used.
(C) The person reasonably believes:
(i) The property cannot be protected or the other’s actions terminated by any other means; or
(ii) The use of force other than deadly force to protect or terminate the other’s actions would expose the person or a third person to a risk of death or serious bodily injury.
Tennessee House Bill 1802
First, the use of deadly force must be the only way to protect the property. It’s not like you can automatically escalate to deadly force; there has to be no other option. Or, the use of deadly force was necessary to protect a third party from death or serious bodily injury. This third party language pretty much mirrors existing use of force laws.
There’s one other limitation to the use of deadly force.
(2) A person is not justified in using deadly force against another individual under this section if the individual is facing away from the person.
Tennessee House Bill 1802
The idea is you cannot use deadly force against someone who is retreating. For it to be reasonable to use lethal force, they must be engaged in the crime, not leaving. Neither can you sneak up behind them and use deadly force
Force and Consequences
The use of force is not a one-side issue. Under the Fifth Amendment we find:
No person shall … [not] be deprived of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment V
That requires a balancing act with the use of force. Someone cannot deprive you of your life, liberty, or property without due process of law, but neither can you deprive someone else of that right. And while it would be helpful if there was a brightly defined set of circumstances for the different levels of force, life doesn’t work that way. We are human beings, not animals, and we need to use our reason when it comes to the use of force.
The use of force, especially deadly force, comes with more than just responsibility, it comes with consequences. Notice how often the term “responsible” is used in this law. “[T]o the degree it is reasonably believed …”, “The person reasonably believes …”, are both repeated. Which means the use of force must be backed by reason. Not the outburst so often seen on videos, not the emotional response to an attack, not even defense of pride, but there must be reason. More than a reason to use force, but a justification for the amount of force used.
To have a reasonable use of force, we need to reason through how we would use it. In the heat of the moment, you are more likely to make an emotional decision rather than a reasoned one. Watch for situations and ask yourself how much force would you use in that situation? When you see riots on the news, ask yourself how would you respond if you were the owner whose property was being destroyed, a bystander observing, or even a member of the group. How far would you go? How would you defend your home, a loved one, or a friend? Under what circumstances would you use force or simply call the police? Consider just how much force you would use? Since the lawful use of force, deadly or otherwise, requires some reasonable conclusions, we should consider in the cold light of day the conditions under which we could reasonably use different levels of force.
For any use of force, there will be consequences. Not just the legal question of whether or not the use was justified, but the need to live with those decisions. Is saving your car, your wallet, or even your cattle, worth the consequences of your use of force? This is especially true with deadly force. I cannot tell you what the right answer is for you, because that will be different for everyone. Personally, there are few possessions that are worth taking a human life. However, any punishment government might hand out are well worth it to protect my family. It may take some time, but I believe I could live with myself if I took a life to protect the life and wellbeing of my family. I do not come to that question flippantly. I have spent a fair amount of time considering different situations and my responses. Because proper preparation prevents poor performance, when my family is on the line no amount of preparation is excessive.
Conclusion
What will you do to defend your life, the life of a loved one, or your property? Just because the law says it’s lawful, doesn’t mean it is right. You will have to live with the consequences, good and bad. You may have to live with taking another human life or watching while something truly terrible happens to another human being. Are you prepared for those consequences?
The one area I would have liked to see expanded on is the use of force in defense from state agents. If law enforcement trespasses on your property, infringes on your rights, and threatens violence against you, what is the reasonable amount of force that can be used to protect yourself, your family, and your property? If a law enforcement officer unlawfully threatens you or damages your property, what is the reasonable amount of force you can use to protect yourself? If under TCA §39-11-614(1)(c)(1)(B) I can use deadly force to terminate a trespass, does that include trespass by law enforcement or other government agents? I would like to have seen that described more fully.
The Second Amendment protects your right to keep and bear arms. Those arms may be used in your defense or the defense of others, but there’s also the expectation that you would participate in the militia to maintain the security of your state. Are you prepared for that sacrifice? The use of arms can come with some serious consequences. Have you considered the long term effects of your short term actions?
When I got married and when our child was born, I started thinking about what I would do to defend them. What would I sacrifice to keep them safe? If you live in Tennessee, as I do, the state has made lawful the use of force, up to and including deadly force, to protect not only human life, but your property. This great power comes with great responsibility. Because if and when you use force to protect life or property, you will be held responsible for how you did so, both by the law and by your conscience. Are you prepared for that?
