Man criminally charged after shooting attacking bear

[Pat McGarrity]

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

[Ed__357]

This is a different kind of encounter, but with a similar ending.

Several years ago, (4 or 5, sorry I don't remember the exact date) there was a story in the "Nashville Tennessean" our local newspaper about a man driving to work early one morning. he was in west Nashville, on Tyne Blvd I think, and it was quite early, the sun had not yet come up.

A deer jumped a fence on the side of the road and ended up right in front of the man who could not react quick enough. His Jeep struck the deer and did a considerable amount of damage to his car. The deer was still alive, but in quite distress and it was obvious to the man the animal was suffering.

The man was a permit holder and had his handgun with him. He shot the deer in the head. One quick shot, killing the deer instantly and ending its suffering. He then called the Metro Police from his cell phone to report his accident, as you are supposed to do.

When the police arrived, the man was arrested for "Unlawfully discharging a firearm within the city limits". If he had just let the deer lie there and suffer or waited for the proper authorities, he probably would not have got into trouble.

I never heard the outcome of this incident. I don't know if the case was dropped or if he was prosecuted. I never heard anything else about it.

According to law, it's against the law to fire a gun in the Nashville city limits.

So what happens if you are attacked? What if you have to defend yourself against a mugger, rapist or car jacker, and you shoot the bad guy? Even if the shooting is "Justifiable" it seems you can still be arrested for firing your gun in the city.

It seems to me this is another law that needs to be changed or re-worded or something.

[johnharris]

Its a little off topic but I want to re-emphasize that the details of the Tennessee "castle doctrine" (which is referenced in Pat's post) was NOT a step forward. It has several traps for permit holders and gun owners that did not exist in the past.

In addition, Tennessee already had a relatively good "castle doctrine" statute that had existed since at least 1989. What the REPUBLICANS rushed to push through last year was legislation that Darren LaSorte (former NRA-ILA lobbyist) and I worked to kill in 2006 and that unfortunately NRA's current lobbyist either ignored or rejected my analysis on and then worked to pass. I will submit to you that Darren LaSorte understood the issues and the downside to Tennessans much better on that issue than does the current NRA lobbyist.

What the castle doctrine did was to statutorily expand the "protected" areas to cars, motels, etc., but frankly those protections already existed if you understood Tennessee law and how that law would be charged to a jury. The "traps" that the law created and the protections that it deleted evidence a much greater loss in the balance.

I know there are lots who want the Republicans in control. To the extent that means the end of Jimmy Naifeh, I would agree. However, I will also caution that we have seen many good bills (killed by Naifeh and his shadow operatives) in the 2nd Amendment area introduced and pushed by conservative Democrats. The castle doctrine is just another example of where some Republicans are so eager to cater to "gun owners" for political benefit that they are passing laws that they don't even understand.

[SomeGuy]

John,

It would seem a good fix then for us would be to develop a good relationship with the Republicans, as they are the only way to un-seat Naifeh (lets face it, he is not going anywhere any other way than losing the majority) and then we can have more influence to get good legislation passed.


Any chance the NRA lobbyist will be more than a worthless body next session? When I was in Nashville earlier this year I spoke with multiple state Reps, when it came to her, they were less than impressed, though one did mention that after Naifeh backstabbed her she seemed a little more realistic to what she was dealing with.

[johnharris]

I hate to say it but some of the Republicans are just as bad. They profess "Second Amendment" but don't really understand it in my opinion. They too often go with what law enforcement wants such as 1) the castle doctrine amendments, 2) felons with guns legislation, 3) increased penalties, 4) assessing fees on permit holders to subsidize what should be paid for from the general funds and the list goes on.

Frankly, some conservative Democrats are just as good if not better than some Republicans.

In the end, however, Naifeh must go AND the NRA needs a skilled lobbyist who understands how "form legislation" negatively impacts existing Tennessee law.

[ProguninTN]

1. That is simply outrageous that the well-being of an animal is placed over that of a human. (So what if it's endangered.)

2. Mr. Harris: So if I understand your comments correctly, TN Law was fine until the NRA butted in. Now that they have done so, they have "fixed something that wasn't broken to begin with" and now we have legal traps/flaws ?

3. I generally think of myself as pro Law Enforcement, but those involved should not be dictating the laws.

[johnharris]

[SomeGuy]

[ProguninTN]