Supreme Court Reviews Use of Self-Defense When Engaged in Unlawful Activity

November 21, 2017

The Supreme Court of Tennessee clarified the law of self-defense when the person making the claim is engaged in unlawful activity at the time the need for self-defense occurred. This clarification is important because some trial courts have not allowed defendants to assert self-defense when it appeared they were engaged in unlawful activity at the time they used force to defend themselves.

In the case before the Court, the defendant alleged that he was acting in self-defense when he fired his handgun, which he possessed illegally, toward a group of men standing in front of a convenience store in Memphis.  He struck a young child inside the store. At his trial, the trial court instructed the jury on self-defense, but determined that the jury should decide whether the defendant was engaged in unlawful activity.  According to the jury instructions, the defendant’s self-defense theory would fail if he was engaged in unlawful activity.

The jury rejected the defendant’s self-defense theory and convicted him of attempted voluntary manslaughter as a lesser-included offense of attempted second degree murder; employing a firearm during the commission of a dangerous felony; five counts of aggravated assault; and one count of assault as a lesser-included offense of aggravated assault. The Court of Criminal Appeals affirmed his convictions, but ruled that the trial court erred in its jury instructions on self-defense. The defendant appealed to the Tennessee Supreme Court.

In its analysis, the Supreme Court outlined the history of self-defense law in Tennessee, focusing on the common law duty to retreat when confronted with unlawful force, which the legislature initially abandoned when it codified the law of the self-defense in 1989. The legislature later added conditions on the statutory privilege not to retreat in 2007.  In this case, the Supreme Court faced the question of whether the statutory language, “not engaged in unlawful activity,” was a prerequisite for asserting self-defense or applied only to the privilege not to retreat.  The Supreme Court determined that the phrase “not engaged in unlawful activity” in the self-defense statute was a condition on the privilege not to retreat. The Court also held that the trial court, and not the jury, should make the threshold determination of whether the State showed there was clear and convincing evidence that the defendant was engaged in unlawful activity when he used force in an alleged self-defense situation.

Based on the facts in this case, the Supreme Court held that the defendant, who admitted to being a felon in possession of a handgun, was engaged in unlawful activity. The Supreme Court also ruled that the trial court’s jury instructions were erroneous because the instructions left the determination of unlawful activity to the jury. However, the Court found the error was harmless beyond a reasonable doubt.

The Supreme Court also ruled against the defendant on jury instructions related to the possession of a firearm as a lesser-included offense; adequate notice of an underlying felony; the defense of necessity; and the sufficiency of proof to support his conviction for assault of the convenience store owner, who was behind bulletproof glass when the shots were fired. The Court affirmed the defendant’s convictions.

To read the opinion, authored by Justice Roger A. Page, please visit the opinions section of TNCourts.gov.