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Someone forcibly breaks into your home in the middle of the night. What are you legally allowed to do?


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I recently moved here, so bare with me. I’ve seen conflicting information.

Could someone just explain a hypothetical situation of a home intruder and tell me what I’m allowed to do and what I’m not allowed to do?
 

If your home is considered property, then technically you cannot use a gun to defend it. Right? If the perpetrator starts stealing things from inside your home, you still cannot do anything, Right?  
 

is someone forcibly breaking into your home in the middle of the night not reason enough to threaten someone with a gun? 
 

thanks 

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You should have followed the advice given to dial it back a bit. It was good advice.    Come back in a couple days when hopefully you’ve heeded that advice. 

As always, this is NOT LEGAL ADVICE!! The confusion typically comes from the fact that there is no "hard and fast rule" here.  Someone who forcibly enters and has no legal right to be there creat

You realize this is a public forum, right?

You can defend yourself and your loved ones from risk of overwhelming and imminent bodily harm.  You're not obligated to retreat.  You're not permitted to prevent theft of property with deadly force.  IANAL.  

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In Tennessee, people can justifiably use deadly force to defend themselves or others if they believe there is an imminent threat of death or serious injury.  There is no duty to retreat from your home.  Do you believe the intruder in your home poses a threat of death of serious injury?  Then you are legally justified in using deadly force to prevent that death or injury.  You cannot use deadly force to prevent the intruder from walking out the door with your 4K UHD television.

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Forcibly breaks in knowing I am home.

He or she ain't selling Amway or recruiting for the Latter Day Saints.

As a reasonable person, this is an unreasonable action which could lead to a violent altercation.

Strong words or putting myself at the mercy of a criminal is not reasonable.

I choose to end it quickly with as much force as necessary.

If the presence of my weapon causes him of her to turn and run, that is an excellent result.

I'm also not likely to attempt to clear my house from my second floor bedroom if victim of an intrusion.

No kids or other family members to worry about.

Edited by A.J. Holst
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One caveat to the excellent responses above:  If you could reasonably expect that person to be in your home, you can't shoot them. For example, locking out a deadbeat roommate who consequently breaks in would not be justifiable cause. 

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3 minutes ago, Darrell said:

One caveat to the excellent responses above:  If you could reasonably expect that person to be in your home, you can't shoot them. For example, locking out a deadbeat roommate who consequently breaks in would not be justifiable cause. 

Well if you want to muddy the waters, locking out a roommate is probably illegal, deadbeat or not.

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As always, this is NOT LEGAL ADVICE!!

The confusion typically comes from the fact that there is no "hard and fast rule" here.  Someone who forcibly enters and has no legal right to be there creates a presumption that you (the rightful occupant) are under a reasonable fear of death or grave bodily harm.  That presumption can be overcome by the facts, though.  For example, an intruder forcibly enters, is completely naked, and falls asleep on the couch.  You walk into the room some time later and find him there.  The fact that the intruder meets that presumption definition does not give the occupant the right to shoot him.  Under those circumstances, the presumption is overcome by the facts.  It would not be reasonable to be in fear at that point. 

Yes, if you change the facts or add facts, that could change the result.  But that's the point. The facts will dictate what is allowable as self-defense. 

The classic example of a self-defense presumption is you hear glass break in the middle of the night.  You get up, see a dark figure and fire at that figure.  Under those circumstances, the shooter is presumed to have been in reasonable fear.  The shooter would not have to prove that fear was reasonable at trial.  If the prosecution can prove that the fear wasn't reasonable, the presumption is overcome and a conviction is possible (maybe even likely).

The only thing the self-defense presumption does is change who has the burden of proof at trial.  In either case, the facts matter.  So, change the facts even slightly, you can get a different answer.  As a general matter, it still comes down to reasonableness.  If someone forcibly enters the house but you have any reason NOT to be in reasonable fear, don't shoot.  Just because a person is in your house is not a get out of jail free card.

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I would add to chip's advice to try not and put yourself in a position to shoot at a dark figure.  A flashlight may save a loved one, a drunk college kid or neighbor....and a lot of regret.  Both a handheld as well as a weapon mounted light are good investments.

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On 1/27/2021 at 9:38 PM, chances R said:

I would add to chip's advice to try not and put yourself in a position to shoot at a dark figure.  A flashlight may save a loved one, a drunk college kid or neighbor....and a lot of regret.  Both a handheld as well as a weapon mounted light are good investments.

That is a good idea. I am looking at adding a Streamlight TL Racker to my Mossberg  shotgun.

Edited by lock n' load
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1 hour ago, peejman said:

You realize this is a public forum, right?

I had typed out a response on this thread a few days ago, and before hitting that submit button the thought "I don't want to go on record saying that" went through my head, and I hit the back button instead. 

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The proper approach to this question and others like it isn’t “what can I do?” It should always be “what must I do?” Whether in your home or elsewhere. So the question isn’t “can I shoot this person,” the question is “must I shoot this person to defend my life, or the lives of others from imminent harm.” If that’s your operating position, I think the odds of you actually being in a position to shoot anybody are pretty damn low, and facing legal trouble over the shoot well below that. 

Edited by Chucktshoes
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11 hours ago, DWARREN123 said:

Call my lawyer before making a statement!

"I feared for my life. There's my weapon. I will cooperate with your investigation, as soon as I have spoken with my attorney."

/crickets/

 

 

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3 minutes ago, docachna said:

"I feared for my life. There's my weapon. I will cooperate with your investigation, as soon as I have spoken with my attorney."

/crickets/

 

 

This in a nutshell.   

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On 1/27/2021 at 8:20 PM, midtennchip said:

The only thing the self-defense presumption does is change who has the burden of proof at trial.  In either case, the facts matter.  So, change the facts even slightly, you can get a different answer.  As a general matter, it still comes down to reasonableness.  If someone forcibly enters the house but you have any reason NOT to be in reasonable fear, don't shoot.  Just because a person is in your house is not a get out of jail free card.

 

10 hours ago, Chucktshoes said:

The proper approach to this question and others like it isn’t “what can I do?” It should always be “what must I do?” Whether in your home or elsewhere. So the question isn’t “can I shoot this person,” the question is “must I shoot this person to defend my life, or the lives of others from imminent harm.” If that’s your operating position, I think the odds of you actually being in a position to shoot anybody are pretty damn low, and facing legal trouble over the shoot well below that. 

@Steaks this is the best advice you're going to get all week.

The law is pretty clear on when deadly force may be lawfully used and it requires "a reasonable belief that there is an imminent danger of death or serious bodily injury"*. This is true in your home or anywhere else you might lawfully be. In your home you're presumed to have that reasonable belief, but the facts can refute that. A classic extreme example to illustrate the facts refuting the presumed belief is of a homeowner who holds an intruder at gunpoint, has them on their knees, ties them up, and shoots them in the back of the head. The homeowner is not in reasonable belief that there is imminent danger of death or serious bodily injury at the moment the trigger is pulled and the facts will prove that. This is not justifiable self-defense. This is murder. There are plenty more examples like Chip's naked napper, or a homeowner luring someone in so they can kill them, etc.

The short version is that away from home, you have to prove you had reasonable fear. At home, the prosecution has to prove you didn't.** This is the burden of proof Chip mentioned. Read the law for yourself here -Tenn. Code Ann. § 39-11-611 specifically paragraphs b, c, d, and e. Para. c lays out the presumption of belief.

*"Serious bodily injury" is defined in Tenn. Code Ann. § 39-11-106  Look at (a)(36).

**Note that it's not strictly limited to your home. In TN it applies to a residence, business, dwelling or vehicle.

 

Edited by monkeylizard
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But going back to the original post, you are not defending your house as “property”, you are defending your life from the fear of harm that an intruder might pose to you or your family. 

However, if you look outside and someone is breaking into your car, or stealing your motorcycle, you can’t run out and shoot them.

If the intruder has your TV and is carrying it out the door, you can’t shoot them.

Even if the intruder holds a gun on you, takes your valuables, but then turns and leaves your house, you can’t shoot them. You may want to, and you might even feel threatened, but I bet you would have a hard time defending the action in court. 

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On 1/29/2021 at 10:32 PM, Snaveba said:

But going back to the original post, you are not defending your house as “property”, you are defending your life from the fear of harm that an intruder might pose to you or your family. 

However, if you look outside and someone is breaking into your car, or stealing your motorcycle, you can’t run out and shoot them.

If the intruder has your TV and is carrying it out the door, you can’t shoot them.

Even if the intruder holds a gun on you, takes your valuables, but then turns and leaves your house, you can’t shoot them. You may want to, and you might even feel threatened, but I bet you would have a hard time defending the action in court. 

Your last paragraph grabbed my attention hard. If the intruder holds a gun on you while he robs you, you really might take that as a serious threat. Say you got to a gun and got the drop on him, and shot him. Then what? 

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35 minutes ago, Quavodus said:

Your last paragraph grabbed my attention hard. If the intruder holds a gun on you while he robs you, you really might take that as a serious threat. Say you got to a gun and got the drop on him, and shot him. Then what? 

That’s different if the threat is still there. 

But what I was saying was that even after having the gun on you, if the intruder has turned and left, if you then grabbed your gun and shot him, possibly in the back, you might have a hard time defending the action. You might still be scared, and still feel threatened, but in actuality the threat has at that point likely ended in the eyes of the law. 

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On 1/29/2021 at 12:47 AM, Possumslayer said:

Someone break into my house they will die.

Be wary of posting something like that. A good [bad?] lawyer will use that post to show that you had premeditated intent. Remember that what you post on a forum like this one never goes away.

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