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Hello fellow bikers. If the proverbial “shit hits the fan,” and you have to use your firearm to protect yourself, you may find yourself in a world of legal trouble if the law believes you did not operate within some basic rules. Your freedom will inevitably require you to have a legitimate self-defense claim. There are five basic principles of a successful self-defense claim:

  1. Innocence
  2. Imminence
  3. Proportionality
  4. Avoidance
  5. Reasonableness

This particular blog post will focus on the first principle: Innocence

Your actions will have to satisfy all five of these principles for a successful self-defense claim. If they are present, you will prevail. If they are not all present, you may spend a very long time in prison. This month we will focus on Innocence.

Innocence

After the dust settles, you must be viewed as the innocent party. While this may seem easy enough to prove, there are many things which can happen which makes you the aggressor.

In an altercation, the aggressor is generally going to be viewed as the person who threw the first punch, brandished a knife or pulled a gun. In some states, words alone can cause you to be the aggressor. Tennessee’s laws are a bit vague with regards to who the aggressor is:

Tennessee 39-11-611

(e) The threat of force against another is not justified:

  • If the person using force consented to the exact force used or attempted by the other individual;
  • If the person using force provoked the other individual’s use or attempted use of unlawful force

Provocation is the key to Tennessee’s innocence claim and the fact that Tennessee has not clearly defined provocation, you must CLEARLY be the innocent party – not the provocateur.

Additionally, you can easily find yourself in a position where competing narratives of the event may portray you as the aggressor – especially if the witnesses are friends of the thug you were protecting yourself against. If this proves to be the case, an overzealous prosecutor may well pursue charges against you.

Proportionality, or the lack thereof, can also cause you to be viewed as the aggressor, not the innocent party. If the thug you are protecting yourself from throws the first punch, but you immediately escalate the encounter by pulling a concealed firearm, you will be in serious jeopardy of losing your innocence – and your claim of self-defense.

While the rules of being viewed as the aggressor vary from state-to-state, the Federal court system has simplified it somewhat with their finding:

“An affirmative, unlawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences…” Michael J. Edwards v. United States

The keys to this are affirmative – meaning not accidental, unlawful – meaning well, unlawful and calculated to produce an affray – meaning the aggressor was the one who deliberately escalated the situation beyond what was necessary. And lastly, foreboding injurious or fatal consequences – meaning there was imminence that you are in serious risk of being maimed or killed. If it can be proven the thug exhibited these, your claim of innocence may be sustained and you will likely be cut loose and not face criminal prosecution.

There are a couple other actions which may cause you to lose your claim of innocence:

Pursuit/Sustainment – If you pursue or sustain the altercation you will no longer be considered the innocent party. In other words, if the thug decides fighting you is not in his best interest, and verbally communicates he is disengaging, and you try to sustain or further pursue him, you will become the aggressor.

Mutual Combat – If after a brush up with the aforementioned thug, you agree to meet him, or take the fight outside, you will have lost your innocence – and perhaps sunk your entire self-defense claim.

Escalation – This was mentioned earlier, and should be reinforced. If you find yourself in a fist fight, or a war of words, do not escalate the encounter beyond what it is – a nonlethal fight. If you pull your pistol at this point, you will be considered the aggressor or provocateur – meaning you are in serious trouble.

Now, if you find yourself in a position where you may have lost your innocence in the altercation, you may still be able to regain your innocence.

Tennessee 39-11-611(e)

  • The person using force abandons the encounter or clearly communicates to the other the intent to do so; and
  • The other person nonetheless continues or attempts to use unlawful force against the person

The Tennessee statue is clear here. You must attempt to disengage from the altercation and most importantly, you must verbally (preferably loud enough to be heard by everyone nearby) communicate your desire to end the affray. At this point, if the thug pursues the fight – or escalates it – you may well regain your innocence.

One other consideration you must keep in mind. Being under the influence of alcohol or drugs will sink a self-defense claim. If you are planning on enjoying some adult beverages, leave your gun at home – or locked up where you cannot gain access to it. If you are under the influence and find yourself in a life-or-death situation, your best defense is not going on the offense. If you pull your sidearm under these conditions – even if you are the innocent – you are in serious legal jeopardy. If you have your weapon you must make the choice between potential death and a very long incarceration. But you risk much if you put yourself in this situation.

Watch for the next blog post on Imminence.

Molon Labe,
Grey Beard Biker

Note: Neither the Grey Beard Biker or Michael are an attorney. While he has been involved in self-defense for many years, this article is provided for informational purposes only. Check with an attorney to understand your state’s laws.

This article was originally published in Thunder Roads Tennessee/Kentucky magazine and is used with permission. It was written by Michael Noirot – a/k/a the Grey Beard Biker.

Other articles in this series can be read by clicking on the following links:

Memorial Day Weekend means hotdogs, parades and flying the beautiful Stars & Stripes. Your favorite Grey Beard Biker likes doing all of that. But additionally, Memorial Day Weekend means riding with my friends in the Great Smoky Mountains.

The mountains of East Tennessee, North Carolina and Georgia offer plenty of your more notable roads like the Tail of the Dragon, Blue Ridge Parkway, Newfound Gap and the Foothills Parkway. But it’s the lesser known roads, which are less traveled, that excites the hell out of me. One of those is the Moonshiner 28.

Moonshiner 28 runs for around 100 miles – southeast through North Carolina, Georgia and South Carolina. We always get to it by taking US Hwy 74 west from Bryson City, NC towards Wesser, turning left on North Carolina Hwy 28. Once you get on 28, hold onto your hat because the shit gets hairy as hell really quick. You will find switchbacks, big looping curves, steep hills, waterfalls and one of my favorite little stops – Highlands, NC. If you find yourself going through Highlands at lunch, dinner or adult beverage time, make sure to stop in The Ugly Dog Public House – a Grey Beard Biker approved establishment!

In closing, do not miss the chance to ride Moonshiner 28 when you are in the mountains of East Tennessee, North Carolina or Georgia. Check out the following video for a taste of the Moonshiner:

Ride often,
Grey Beard Biker

If you are reading this, you are most likely a defender of our Second Amendment. You may even conceal carry a handgun when you leave the house. If so, congratulations on taking your safety, and the safety of your family and friends seriously. We all know that the best defense against a bad guy with a gun is a good guy with a gun. But do not fall into the same trap many people do: that carrying a handgun makes you “bullet-proof.” It simply does not.

In fact, if you have become lazy because of that gun on your hip, you may be in more danger than an unarmed citizen who is very vigilant. Vigilance is the key to your safety and those with you – and vigilance starts with situational awareness.

According to Wikipedia, Situational Awareness is defined as:

“…the perception of environmental elements and events with respect to time or space, the comprehension of their meaning, and the projection of their status after some variable has changed, such as time, or some other variable, such as a predetermined event.”

And while situational awareness is a key component to riding a motorcycle safely – Eg. Is that car approaching from the side road going to run the stop sign and pull out in front of me? – many riders leave their situational awareness with their helmets when they climb off their scoot. In other words, they become unaware of everything going on around themselves.

Increasing your situational awareness starts with PAYING ATTENTION! Pay attention to everything going on around you. If you are like many people, that smart phone you are self-absorbed in is putting you at risk. Do not walk around in public with all of your attention focused on your social media networks. I have walked up to friends who are on their iPhone and greeted them several times before they were even aware I was there. That same person will never be able to defend against an attack by a thug if they are only paying attention to liking their friends’ Facebook posts.

It would be helpful to look at the way a thug intent on doing harm thinks. First, you must think of these people as being like a tiger which is stalking their next meal. Like that tiger, they purposely scope out the weakest animal in a pack before they spring forward to attack. Shit-bag thugs do the same thing. If they are going to commit an armed robbery they will look for the softest of targets – that person least likely to defend themselves when they spring forward to attack. Perhaps it’s that person peering intently into their smartphone. Perhaps it’s that person walking along the dark sidewalk talking to their girlfriend on the phone. Or perhaps it’s that person in the restaurant sitting with their back to everyone else. These are their easiest targets – those who due to their total lack of situational awareness have left themselves the most vulnerable – and least likely to be able to fight back. Even if they are packing a concealed handgun, they will be unable to act quickly enough to use it in their defense – and may even have their gun taken away from them and used against them.

Here are some suggestions which will help you increase your situational awareness:

  1. Avoid dangerous areas – Do not put yourself into a situation where you will be more likely to have to defend yourself.
  2. Remove your smartphone from your consciousness when you are in a public place. It is okay, even preferable, to have it with you, but your attention should not be focused on it.
  3. If you are walking into your corner gas station put your phone in your pocket. Look around the establishment before you enter. Is it well lit? How many people are in there? Are there any people who look dangerous? (Yes, it is okay for you to profile people.) What can you use for a barrier if the proverbial “shit-hits-the-fan?” Where are the exits? Have you examined the people present well enough to describe them for a police report? If not, you are not situationally aware of your surroundings.
  4. Do not sit where you have blind spots. Avoid sitting with your back to everyone else in that restaurant. I personally like to find a corner table and have my back to the corner.
  5. Events change and you need to change with them. Closely examine newcomers entering the restaurant, pub or gas station.
  6. Most importantly remove anything which can become a distraction.

The more you practice situational awareness, the easier it becomes. Be aware of the people around you. Be aware of the structure you are in. Search out exits. Scan faces. Stay away from dark areas where you can easily be ambushed. Do not ever become the prey because your concentration is elsewhere.

Molon Labe,
The Grey Beard Biker

This article was originally published in Thunder Roads Tennessee/Kentucky magazine and is used with permission. It was written by Michael Noirot – a/k/a the Grey Beard Biker.

Greetings fellow bikers. Summer is nearly upon us, and if you are like me, you will be carrying a pistol on your belt, ankle or boot. On our longer road trips, it is sometimes impossible to ride through states which recognize the Tennessee Handgun Carry Permit (HCP). This makes it difficult to carry legally.

While there have been states which allow for some type of handgun carry since the early 1920s, concealed carry permitting was not adopted by any state until Georgia did so in 1976. Indiana followed in 1980, Maine and North Dakota in 1985 and South Dakota in 1986. The floodgates opened soon thereafter, with 22 other states creating some kind of licensing for concealed carry over the next ten years. And while the formation of gun control groups (Brady Campaign, Everytown for Gun Safety, Moms Demand Action, etc.) were to come years later, the Left immediately jumped in and said these laws would create scenes of Dodge City – with “blood flowing in the streets.” Naturally, there was a lot of media attention and states which were firmly controlled by the Democratic Party knuckled under and avoided legislation to allow for concealed carry programs. A few opted to pander to gun owners by creating “May Issue” programs – which were essentially the same as having no concealed carry law since a specified government official would decide if you really needed to carry a concealed firearm. Very few citizens are approved in these states. Today, every state has enacted a concealed carry licensing program, with Illinois being the last, having been forced by court order to do so in 2014.

Like other states with very restrictive gun laws, Illinois will not honor or provide any sort of reciprocity with any other state. This is the rub. When you are traveling, like we did recently, and riding through one of these states, you could be arrested for having a handgun anywhere on your person. These are almost always felony charges, which may lead to you not being approved for future gun purchases.

Your lovable Grey Beard Biker believes the best solution for the current patchwork of concealed carry laws would be a national constitutional carry amendment. However, this is highly unlikely in the foreseeable future. What can be done more easily, now that conservatives control both Federal legislative bodies and the executive branch, is national reciprocity. We have a very realistic opportunity to do this as a bill has already been introduced.

On January 3, 2017, North Carolina Representative Richard Hudson introduced H.R. 38 – Concealed Carry Reciprocity Act of 2017 in the House of Representatives. Since that time 208 other house members have signed on as co-sponsors, including three Democrats. Here is what the congress.gov/bill website provides as summary text for H.R. 38:

This bill amends the federal criminal code to allow a qualified individual to carry a concealed handgun into or possess a concealed handgun in another state that allows individuals to carry concealed firearms.

A qualified individual must: (1) be able to possess, transport, or receive a firearm under federal law; (2) carry a valid photo identification document; and (3) carry a valid concealed carry permit issued by; or be able to carry a concealed firearm in, his, or her state of residence.

Additionally, the bill specifies that a qualified individual who lawfully carries or possesses a concealed handgun in another state: (1) is not subject to the federal prohibition on possessing a firearm in a school zone, and (2) may carry or possess the concealed handgun in federally owned lands that are open to the public.

In simple terms, the Concealed Carry Reciprocity Act of 2017 will allow a handgun carry permit holder in Tennessee to legally conceal carry their handgun in any state which has a concealed carry permit for their residents. Since all 50 states have such programs, you could carry legally in all 50 states. One would also assume this reciprocity would be honored by the District of Columbia, since they also have a “may issue” concealed carry permitting program. The bill will not grant open carry privileges – at least in states which do not have an open carry provision -and the permittee will have to abide by all concealed carry laws in force in the state they are in.

In simple terms, the Concealed Carry Reciprocity Act of 2017 will allow a handgun carry permit holder in Tennessee to legally conceal carry their handgun in any state which has a concealed carry permit for their residents. Since all 50 states have such programs, you could carry legally in all 50 states. One would also assume this reciprocity would be honored by the District of Columbia, since they also have a “may issue” concealed carry permitting program. The bill will not grant open carry privileges – at least in states which do not have an open carry provision -and the permittee will have to abide by all concealed carry laws in force in the state they are in.

The House of Representatives haa passed this bill. At this time, I’m fairly certain it would need to be reintroduced in a now Democratic controlled House of Representatives. But it could still pass again as there are plenty of Democrat legislators living in states that are very pro-second amendment. In 2017, the Republican controlled U.S. Senate, controlled by senate majority leader Mitch McConnell (R-KY) never let the bill come out of committee. But it’s not too late.

What can you do? – Contact your U.S. representative, and both of your U.S. Senators, and urge them to support a National Reciprocity Bill. You can go to this NRA-ILA website to reach your lawmakers: National Rifle Association Institute for Legislative Action

Molon Labe,
The Grey Beard Biker

This article was originally published in Thunder Roads Tennessee/Kentucky magazine and is used with permission. It was written by Michael Noirot – a/k/a the Grey Beard Biker.

Tennessee Highway 32 – The Secret Road

Living in Tennessee provides many opportunities to ride wonderful motorcycle roads. At least twice a year, your ever lovable Grey Beard Biker heads to The Great Smoky Mountains to ride some of the most challenging roads found anywhere in the United States.

One of those roads is a little known piece of asphalt which is off the beaten path – and is infrequently travelled by the throngs of nature gawkers most of the National Park roads present those of us on two wheels. If you were to travel east of Gatlinburg on US Hwy 321 you would eventually find yourself approaching Cosby, Tennessee. There you will find TN Route 32 – lovingly known, by those in the know, as “The Secret Road” or “The Road To Nowhere.”

The Secret Road is not for everyone. It may well be one of the most technical motorcycle roads east of the Mississippi River. Running approximately 10 miles east from Cosby, it eventually reaches I-40, after turning to gravel. I call it the Road to Nowhere because it does not connect Cosby to anything but the Appalachian Trail and the aforementioned interstate highway.

When you first start riding from Cosby, the road seems fairly tame. But you will quickly find yourself in the midst of a monster! Unlike the area’s most popular road, The Tail of the Dragon, you will find yourself hitting switchback after switchback, with a couple of curves thrown in to provide a short respite. To my knowledge, no one has counted how many curves are on this road, but I would suggest it’s equal in count to the Tail.

If you decide to ride this road, take it easy on your first couple of passes. You will find that there are very few guardrails to keep you on the road if you high-side a curve or switchback. There are also very few motorists or other bikers who will be able to provide assistance. Making things worse, your cell phone will not work in the remote hills surrounding this road. Lastly, if you were to get hurt, you can expect to wait 45 minutes for an ambulance, and an hour to get to the nearest hospital. But if you are up to the challenge, you will wear a grin from ear-to-ear

The Secret Road will not disappoint!

Many fellow firearms aficionados I speak to have considered reloading their own ammunition. There are several things to consider before you decide you are going to roll your own ammo:

  • You have to shoot a lot to pay for the cost of reloading gear
  • With ammunition prices so low, and ammo plentiful, buying at your local gun store or big box store may be the best thing to do
  • You need quality dies for each caliber you plan on reloading
  • Reloading is delicate work and it is time consuming – you cannot take shortcuts
  • It can cost north of $1,000 to get started – you can buy a lot of ammunition for that cost

Your friendly Grey Beard Biker suggests you take a decision to reload very seriously. One place to start is by watching the following video your old Grey Beard Biker put together just for you!

The Grey Beard Biker recorded this video on reloading just for you!