Shot in the back: Is Tennessee v. Garner a “License to Kill”?
By now, many of you may know who Chris Gaither is. If not, he’s an 11-year-old from Talladega, Alabama (Home of Ricky Bobby) who recently used a 9mm handgun to “defend” himself during a burglary that took place while he was home. Score one for the good guys. This kid is a hero. Hoorah for the 2nd amendment. Molone Labe, Don’t tread on me, blah, blah, blah. Truth of the matter is, based on his comments and demeanor, this kid doesn’t fully grasp the gravity of his actions. It would also seem that most of the adults who support his actions don’t either. His mindset is excusable, he’s 11. The rest… smmfh.
As the story is told, Chris was home alone on Wednesday morning when a burglar broke into his house. Chris’s response to this home invasion was to grab a nine-millimeter handgun, fire (and miss) 11 shots at the burglar as he ran for the hills, and finally hit him with the 12th “full metal jacket” bullet as he tried to climb a fence at the edge of the property.
One of my Facebook friends, a guy I’ve come to respect as one of the sharper knives in the block said it perfectly… “it’s a poor decision to give children unrestricted access to firearms, motor vehicles, power tools and other dangerous pieces of implementation.
Queue the whiners and internet tough-guys saying : “When I was 11 I already had a job and was perfectly capable of handling…. blah blah blah”
First: No…you weren’t. The adolescent brain is not a fully developed organ, for anyone, period. If you think you were just as adult and responsible at 11, 14, or 16 as you are now…you’re probably right – but not for the reason you think you are.”
WELL SAID MY FRIEND!!!
In Georgia, as I suspect is the case in most places in the U.S., O.C.G.A. 16-3-21 states:
O.C.G.A. § 16-3-21
Use of force in defense of self or others; evidence of belief that force was necessary in murder or manslaughter prosecution
(a) A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.
No where in there, does it state “May shoot a threat in the ass as he’s jumping a fence”. So, among some of the kids supporters, I came across a police officer whose position was…
“Guys it was a criminal!! If someone were breaking into your place think how you’d act!” Only, he didn’t shoot him during the act.
“Tennessee Vs. Garner says you can use deadly force against a fleeing felon” wellll…not exactly “officer” (smfh)
“While in the police academy this was very important case that we studied relentlessly…we bet our freedom on this quite often. Let me reiterate “don’t steal and bad things won’t happen” Safe to assume you fell asleep in class that day.
A number of us attempted to clarify Tennessee v. Garner for him and inform him that what is actually says is…”Law enforcement officers pursuing an unarmed suspect may use deadly force to prevent escape ONLY if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”
His response: “Does anyone see what is wrong our society…we are defending a felon! A FELON!”
Me: Holy shitballs…WTF…turn in your badge, do not pass go, you’re too stupid to carry a gun, go back through the police academy again…but whatever you do, get off the streets before you kill someone.
Now, I regularly train LEO’s to become better marksmen and fighters with their guns. What I don’t do, is try to teach them how to be better cops and how to do “cop stuff”. I’ve never been a cop, so I know my lane. The majority of my clients/students are private citizens who carry concealed. As an instructor, my objective is to develop critical thinkers who are capable of making sound decisions when faced with the prospect of becoming involved in a violent critical incident. One of the ways I accomplish this is by not only teaching multi-disciplinary fighting skills but also, providing my clients with the information needed to make these decisions and do so quickly and decisively within the legal guidelines of the jurisdiction in which they live. It’s my belief that by arming the civilian defender with the proper information, that the decision making cycle speeds up, therefore increasing reaction time (if they have also train to fight).
In this same thread, Greg Ellifritz a highly respected instructor, police officer and subject matter expert in most things defense related, put it in perspective, and cleared up what the difference is between how an LEO can use Tennessee v. Garner and a private citizen doing so when he stated…
“Cops have slightly more latitude because they are authorized to use force not only to defend themselves and others, but also to effect a lawful arrest.
In most states, any citizen can make an arrest for a felony crime and would fall under the same police rules (tenn. V garner) that the cops have to follow when doing so.
Theoretically a cop could use deadly force to effect a misdemeanor arrest where a citizen couldn’t. But I can’t think of any situation where that would be legal.”
The key points that the private citizen needs to take from this are…
A) Don’t shoot at what you aren’t reasonably certain you can hit. He fired 12 shots, 11 bullets missed. That’s 11 bullets with no specific back stop. 11 bullets capable of continuing to be lethal at distances of at least a mile (2500 yards or 1.420455 miles). 11 bullets capable of killing or destroying people or property not intended to be shot. I believe Claude Werner calls that a “Negative Outcome”.
B) Know the laws of your jurisdiction. In Georgia, where I live, using deadly force to protect property, no bueno. Conversely, in Texas, not a problem, as we saw in the 2007 shooting of two burglars by 61 year old Joe Horn.
C) Tennessee v Garner DOES make concession for shooting a fleeing felon but ONLY if a threat of serious harm is still and continuously posed by the fleeing felon. As another participant in the thread stated “You can’t shoot someone because you are “mad” at them.” #MicDrop
D) Using lethal force to protect property that can be replaced is, in my opinion, a bad idea. New “stuff” can be replaced at the store, you can’t go but new life.
If you carry a weapon but don’t know your states laws on the lawful use of deadly force to the degree that you can arguably consider yourself a “layman’s expert”…you’re not doing this right.
A lifestyle magazine for armed urban living 
Thank you for the shout outs, Samuel! Indeed…people are getting their logic twisted by not examining the totality of the circumstances.
We had a case in Nashville just recently where a man fired two rounds from a 12 gauge at a fleeing prowler, who was attempting to steal his lawncare (the shooter was a landscaper) implements. One round hit the suspect’s vehicle, dislodging a hubcap. No arrests were made…yet here, IN TENNESSEE, lethal force is not justified in the defense of property. And this IS the place where TN v. Garner took place! Pretty silly, I feel.
http://wkrn.com/2016/04/22/antioch-homeowner-fires-shots-at-burglary-suspect/
Keep up the good work!
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I try to make sure I properly cite the sources when I re-use the cool stuff. Thanks for coming up with it, I’ve been struggling with what to call us that doesn’t sound goofy and “Tacticool”. You hit it out the park with that one.
I can’t think of anything I own that is worth taking a human life for if all that is at risk is the loss of the property. Thank’s for the comment!
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“B) Know the laws of your jurisdiction. In Georgia, where I live, using deadly force to protect property, no bueno. Conversely, in Texas, not a problem, as we saw in the 2007 shooting of two burglars by 61 year old Joe Horn.”
Texas has a rather narrow justification that requires several elements to be present before one can use deadly force to protect property (night time being only one of them). Without seeing the police reports and other evidence presented to the grand jury, it is not possible to say whether the grand jury declined to indict him because of that narrow justification or because of the more general justification of self-defense, because there was serious doubt about really happened – or they just didn’t see the justice in indicting Horn over burglars with long criminal histories.
I would not use Joe Horn as an example to say you can shoot someone over property in Texas. He was danced pretty close to the line, leaned over it pretty far, lucky he didn’t fall.
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FACT: In Georgia, there is NO working in the penal codes that authorize use of deadly force to protect ptoperty.
FACT: Texas authorizes the use of deadly force to defend property. The circumstances in which the force is lawful, is not at question anywhere in my statement. I simply stated that it is authorized, which it is.
Texas Penal Code § 9.42. Deadly Force to Protect Property
A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.
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In my CHL classes, I constantly reinforce the concept of Tennessee vs Garner…in my home state there have been several examples where citizens have been prosecuted for shooting felons for theft…I tell my “people” “we” as a People surely have developed beyond the point where a person’s life equates to a piece of intangible property…will it suck to watch your 50k Eddie Bauer Ford driving away from your house with a 17 yr old thief at the wheel?? you bet…but it is not worth killing over…nor should it be. I worked in a jurisdiction, pre Garner, where a local cop shot and killed a 15yr old shoplifter over a pair of stolen boxer shorts…the cop was never the same, and it is incidents like this that caused Garner vs Tennessee to become the prevailing law. Even in Texas, someday this practice will come to an end…Texas just has not see the right set of circumstances line up that will sufficiently “shock the moral conscious” of Texans, to change the law. I tell my folks you DO NOT want to be one of those folks who lies awake at night after killing someone for stealing your ATV….regretting the whole incident…you want to be that guy ( or gal) who says ” it was him or me, and I’m OK with it”
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Lt. Donn…you get it. I tell many of my students that there is a huge difference between legally authorized and morally obligated in many instances. Being able to look at the man in the mirror and continue to like him, is just as important to me as being “right” and sometimes that might mean, not drawing my gun.
Thank you for your service to your community and all that you continue to do to keep folks safe through your CHL classes.
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Spot-on on this article, Samuel!! This case should NOT be emulated by anyone in the Self-Defense Community.
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Dude, I feel your pain.
I was a LEO for over 30 years and my last assignment was as an academy instructor. While I didn’t teach Use of Force, we were all trained and certified UOF instructors, so . . .
I’ve made comments other places about iffy or bad shootings. My comments always follow the same pattern: 1. Never shoot to protect property. In the United States, the law holds that all human life, even the life of a criminal, is more valuable than any piece of property. 2. The police have a duty to pursue and apprehend, and as a result have qualified immunity against certain bad outcomes of their performance of that duty. The lawfully armed citizen has neither; if the person is not a threat to you (and a fleeing burglar is not a threat), shooting him is aggravated battery or murder. Let him go and be a good witness.
Every time I do this, I get called names (“libtard” is very popular), lectured on Texas law (always wrongly), and told something like, “I feel that the criminals are getting away with too much . . .”, as if the law cares what you feel.
I’ve given up. If people want to bankrupt themselves with legal fees so they can spend their lives in a cage and pay 7 figures to some shithead’s grieving family, it’s not my problem.
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Amen brother. Your last paragraph is SPOT ON. People seem to ignore that “legally authorized” and morally correct are not the same thing. I say it all the time. Criminals can’t outrun a warrant. Be a good witness and let the cops do what they do. Good comment, thanks for your participation.
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By the way, the facts in Garner v. Tennessee were exactly the same as in this case. A shooter (in this case a police officer) shot a fleeing unarmed burglar. The Supreme Court ruled that absent a reasonable belief that a fleeing felon represented an imminent threat to the public safety, it was a violation of the Fourth Amendment for the police to use deadly force.
General rule for getting through life: If it’s illegal for the police, you probably shouldn’t do it either.
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“General rule for getting through life: If it’s illegal for the police, you probably shouldn’t do it either.”
#SoundsLegit LOL
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