Subject: Florida strengthens "stand your ground" while Tennessee rejects bill to do likewise

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June 22, 2017

Some people, including the Tennessee Republican leadership of the House, Senate and most legislative committees, like to claim how strong they are on the 2nd Amendment.  TFA has called them on that delusion or intentional misrepresentation for 7 years now. 

It cannot be ignored that for 7 years a certain type of Republican has dominated control of the future of Tennessee and that during that tenure, efforts to eliminate gun free zones, enact permitless open carry, constitutional carry and to reduce the meddling of the Tennessee Department of Safety in the permitting system have been repeatedly and intentionally stonewalled.  At the same time, those so-called Republicans have been on a spending binge in which they have increased the state budget by almost $10 billion, raised taxes on families and taken other steps that suggest that these so called "leaders" are not leaders of the conservative cause or loyal to their constitutional oaths.

Here is another example.

Recently, Florida Governor Rick Scott signed SB 128 which protections for citizens in Florida in instances that involve justifiable use of deadly force in self-defense. The Florida House had approved the bill 74-39 and the Senate voted 22-14.  The amendment to the law makes clear that the government bears the burden of proof in any case in which self-defense is raised to prove - prior to proceeding to trial - by clear and convincing evidence at a preliminary stage of the proceedings that the incident was not a justifiable use of force. 

In 2005 Florida passed a self-defense law which says that citizens are immune from arrest, detainment, charging and prosecuting.  To overcome that immunity, the state must show in an investigation that there was probable cause to believe the act was not, in fact, lawful self-defense. The Florida Supreme Court had developed a process, however, in those immunity hearings which put much of the burden on the citizens - not the state. 

Florida Senate Bill 128 was enacted for the purpose of reversing the Supreme Court's procedure in these matters and requiring by law that the state must provide “clear and convincing” evidence to move forward with a prosecution if the matter involves a meaningful claim of self-defense. 

Tennessee has a statute (Tenn. Code Ann Section 39-17-1322 which on its faces reads like the 2005 law from Florida. It says:

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.
Note the phrase "shall not be charged..."

Despite this Tennessee law and its plain words, several Tennessee appellate decisions have construed this statute so that the phrase "shall not be charged" is ignored.  They have reasoned that the statute makes it a jury question and, have reasoned, that obviously you can never have the jury decide the issue of self-defense unless the person is charged, indicted and required to defend against the claims in a full trial

According to the appellate decisions, the beginning of the statute really means "A person shall not be ... convicted...."

In 2016 in Tennessee Sen. Kerry Roberts and Rep. Andy Holt sponsored legislation to make clear in Tennessee that those engaged in self-defense should not be further persecuted by the state unless there is clear and convincing evidence - not just probable cause - to demonstrate that the incident was in reality not self-defense.  In SB0861/HB1006  an effort was made to implement in Tennessee a law similar to that which has passed already now in Florida. 

Unfortunately, the legislation was killed on a "voice vote" in the notorious House Civil Justice Subcommittee on March 29. 

Under the leadership of Speaker Beth Harwell, the House rules do not require recorded votes on matters such as this so the Republican controlled subcommittee has no official roll call vote on the measure.

Thus the Republican dominated, 7 member subcommittee, which is chaired by Rep. Mike Carter (R) killed the bill without leaving a record of accountability for who voted to suppress the effort to protect citizens from continued risks of being unjustly criminally charged and prosecuted in legitimate self-defense situations.  The other members of that committee are Rep. Bill Beck (D), Rep. Glen Casada (R), Rep. Martin Daniel (R), Rep. Andrew Farmer (R), Rep. G.A. Hardaway (D), and Rep. Debra Moody (R).  Thus in a committee controlled 5-2 by Republicans, the bill failed on a "voice" vote.

Tennessee Firearms Association and its members will continue to fight for stronger laws to protect the victims of violence who resort by necessity to self-defense when their lives or those of their families are in imminent threat of death or serious bodily harm.  Part of that fight will be to support the only real choice for constitutionalists for governor in 2018 but also to support those incumbents who have stood firm on our rights.  By the same measure, we have to work to remove as many of the incumbents who have trampled our fundamental rights, who have broken their promises, and who have deceived the public by replacing them with challengers who will not only support our rights but who support the right candidate for governor.  

If this turn of events concerns you, join TFA today to help continue the fight!!!  If you are already a TFA member and this angers you, as it should, consider making a supplemental member contribution to help continue the legal battle.

If you want to make a contribution to the 2018 election cycle war chest, you can go to the TFALAC's page and donate to the TFA's affiliated PAC.


John Harris
Executive Director
Tennessee Firearms Association

PS If you want to help us move to get rid of gun free zones, to enact constitutional carry, and to push back against an unwilling legislative leadership and an uncooperative administration, please consider this request to  join, renew and support the Tennessee Firearms Association.  Asking for your member support of TFA is a call to action both financially and, more importantly, a call to affirmative action of individual engagement in a real battle for the restoration of our rights.

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