Man criminally charged after shooting attacking bear
Posted: Sat Jul 26, 2008 8:55 pm
Man criminally charged after shooting attacking bear
This Ohio case illustrates the immediate need to amend Tennessee's self defense laws. Because of changes made last year, the same nonsensical, miscarriage of justice could occur here.
"7/26/08 AP BAKERSVILLE, Ohio - An eastern Ohio man says he killed a black bear in self defense because the animal charged at him — but he's been charged with shooting an endangered animal.
John Tanksley says his dog tried to chase the bear away from his property at Newcomerstown in Coshocton (kuh-SHAHK'-tuhn) County but the animal kept coming back.
He says that when he and his girlfriend tried to get the dog back in the house on Wednesday the bear charged at them.
State wildlife officer Garth Goodyear describes the bear as "man-size" and weighing 165 pounds.
If Tanksley is convicted of the misdemeanor offense he could get up to one year behind bars and be fined $1,000."
Along with some positive changes made in last year's "Castle Doctrine" law, our "Safe Harbor" provision was weakened and the future of someone forced to defend themselves, or save another, can now be in question. From 1989 to 2007, TCA 39-17-1322 stated:
"A person shall not be charged with or convicted of a violation under this part if the person possessed, displayed or employed a handgun in justifiable self-defense or in justifiable defense of another during the commission of a crime in which that person or the other person defended was a victim."
The road to hell is paved with good intentions
Because well meaning legislators did not want gang bangers to get away with killing each other, TCA 39-17-1322 now stipulates:
"Notwithstanding the provisions of § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where such person has a right to be has no duty to retreat before threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force."
"Notwithstanding", used as a preposition here, is defined as "in spite of". It is highly unlikely that an experienced prosecutor, such as Shelby County District Attorney General, Bill Gibbons, would not understand the spirit of the law and prosecute someone for using force while having an expired driver's license, however, that is still technically being "engaged in unlawful activity" when using such force.
We don't know what a politically motivated prosecutor would do, such as North Carolina's Mike Nifong, or an unstable individual in the D.A.'s office could do, such as an Ophelia Ford, or a Prince Mongo. Couldn't happen here you say? Well, Senator Ford is already a law maker. This vague law states that it is not lawful to use whatever force necessary to stop a charging bear, considered "endangered", but it is legal for the bear to kill you and/or your loved ones. The impression being that law makers prefer the later scenario.
Even in your own home, this change in the law threatens your liberty and financial well being. For example, if you write a check over $100.00, and happened, by mistake, or not, not to have the funds in your account; (Nonpayment within 10 days after receiving notice is prima facie evidence of intent) TCA 39-14-121 says you have committed a felony. Throw in a self defense situation, and you could have a possession of a firearm in the commission of a felony charge. The well intended SB-1967, “Crooks with Guns†bill, passed last year, made such a felony punishable by a mandatory sentence of 3 to 10 years. Even a code violation such as your boat not being stored in accordance with a city ordinance is still an "unlawful activity".
As for, "in a place where such person has a right to be", the government owns much property that an armed citizen may happen to be on and not be aware of it being a prohibited area. If you run for cover into a park from robbers shooting at you, and happen to be armed, guess what? Even if your only choice to survive was to return fire and you win the gun fight, you would have "engaged in unlawful activity", because the legislature doesn't trust Carry Permit Holders to be armed in the very parks we pay for. That's another thing we need to fix in Tennessee.
TFA Executive Director, John Harris, explained in detail to legislators:
http://www.tennesseefirearms.com/downlo ... sb0011.pdf
why the "Castle Doctrine" was one step forward and two steps backwards before it passed last year. The bill sounded good and it's supporters could site this as a pro-gun vote, and it was, in part.
Now, it's time to finish the job and remove the vague language in the law. Please contact your State Representative and Senator and tell them to make the restoration of our "Safe Harbor" law a legislative priority in the upcoming session. It's an election year and their listening skills tend to be better now. Thank you!
Tennessee General Assembly Phone#: (800) 449-8366
Website for e-mail and district info: http://www.legislature.state.tn.us
In Liberty,
Pat McGarrity
Director - Shelby County, TFA
This Ohio case illustrates the immediate need to amend Tennessee's self defense laws. Because of changes made last year, the same nonsensical, miscarriage of justice could occur here.
"7/26/08 AP BAKERSVILLE, Ohio - An eastern Ohio man says he killed a black bear in self defense because the animal charged at him — but he's been charged with shooting an endangered animal.
John Tanksley says his dog tried to chase the bear away from his property at Newcomerstown in Coshocton (kuh-SHAHK'-tuhn) County but the animal kept coming back.
He says that when he and his girlfriend tried to get the dog back in the house on Wednesday the bear charged at them.
State wildlife officer Garth Goodyear describes the bear as "man-size" and weighing 165 pounds.
If Tanksley is convicted of the misdemeanor offense he could get up to one year behind bars and be fined $1,000."
Along with some positive changes made in last year's "Castle Doctrine" law, our "Safe Harbor" provision was weakened and the future of someone forced to defend themselves, or save another, can now be in question. From 1989 to 2007, TCA 39-17-1322 stated:
"A person shall not be charged with or convicted of a violation under this part if the person possessed, displayed or employed a handgun in justifiable self-defense or in justifiable defense of another during the commission of a crime in which that person or the other person defended was a victim."
The road to hell is paved with good intentions
Because well meaning legislators did not want gang bangers to get away with killing each other, TCA 39-17-1322 now stipulates:
"Notwithstanding the provisions of § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where such person has a right to be has no duty to retreat before threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force."
"Notwithstanding", used as a preposition here, is defined as "in spite of". It is highly unlikely that an experienced prosecutor, such as Shelby County District Attorney General, Bill Gibbons, would not understand the spirit of the law and prosecute someone for using force while having an expired driver's license, however, that is still technically being "engaged in unlawful activity" when using such force.
We don't know what a politically motivated prosecutor would do, such as North Carolina's Mike Nifong, or an unstable individual in the D.A.'s office could do, such as an Ophelia Ford, or a Prince Mongo. Couldn't happen here you say? Well, Senator Ford is already a law maker. This vague law states that it is not lawful to use whatever force necessary to stop a charging bear, considered "endangered", but it is legal for the bear to kill you and/or your loved ones. The impression being that law makers prefer the later scenario.
Even in your own home, this change in the law threatens your liberty and financial well being. For example, if you write a check over $100.00, and happened, by mistake, or not, not to have the funds in your account; (Nonpayment within 10 days after receiving notice is prima facie evidence of intent) TCA 39-14-121 says you have committed a felony. Throw in a self defense situation, and you could have a possession of a firearm in the commission of a felony charge. The well intended SB-1967, “Crooks with Guns†bill, passed last year, made such a felony punishable by a mandatory sentence of 3 to 10 years. Even a code violation such as your boat not being stored in accordance with a city ordinance is still an "unlawful activity".
As for, "in a place where such person has a right to be", the government owns much property that an armed citizen may happen to be on and not be aware of it being a prohibited area. If you run for cover into a park from robbers shooting at you, and happen to be armed, guess what? Even if your only choice to survive was to return fire and you win the gun fight, you would have "engaged in unlawful activity", because the legislature doesn't trust Carry Permit Holders to be armed in the very parks we pay for. That's another thing we need to fix in Tennessee.
TFA Executive Director, John Harris, explained in detail to legislators:
http://www.tennesseefirearms.com/downlo ... sb0011.pdf
why the "Castle Doctrine" was one step forward and two steps backwards before it passed last year. The bill sounded good and it's supporters could site this as a pro-gun vote, and it was, in part.
Now, it's time to finish the job and remove the vague language in the law. Please contact your State Representative and Senator and tell them to make the restoration of our "Safe Harbor" law a legislative priority in the upcoming session. It's an election year and their listening skills tend to be better now. Thank you!
Tennessee General Assembly Phone#: (800) 449-8366
Website for e-mail and district info: http://www.legislature.state.tn.us
In Liberty,
Pat McGarrity
Director - Shelby County, TFA