Virginia, "Duty to retreat" or "Castle Doctrine"?

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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby Batty67 » Wed, 07 Sep 2011 14:10:43

Glad I have the gist of it. Great discussion. Again, I'm just trying to pass-on the gist of the legal seminar I took on this and related subjects. Yes, the instructor emphasized the need to emphasize the need to STOP THE THREAT. Use those words, believe those words, APPLY those words in action if needed. Aiming to wound in self-defense might keep you safe and out of jail, but might end up in a civil suit and get taken to the cleaners. Of course, the family of the now deceased person (the threat was stopped) might sue for wrongful death in civil court anyhow.

That's why the instructor said repeatedly, leave law enforcement to the LEOs and if humanly possibly, avoid a situation where you *need* to pull the firearm, and if you do, you will very likely need to use it to stop the threat, and always consider (such that you can) if it would be perceived as a reasonable reponse to a reasonable fear of death or serious injury. Don't be a victim, but don't be stupid.


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby jdonovan » Wed, 07 Sep 2011 15:14:07

TenchCoxe wrote:Although I am a practicing attorney, I am not a criminal law attorney

I've often heard that one aspect of VA's case law on self-defense in the home is that an uninvited person may be assumed to be there to cause serious harm to the occupant, and the occupant may defend against such threat.

I suspect the ruling, if we can find it probably can expand on that quite a bit...Do you have the ability to search existing cases, to clarify the statement?


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Wed, 07 Sep 2011 17:48:21

jdonovan wrote:I've often heard that one aspect of VA's case law on self-defense in the home is that an uninvited person may be assumed to be there to cause serious harm to the occupant, and the occupant may defend against such threat.

I suspect the ruling, if we can find it probably can expand on that quite a bit...Do you have the ability to search existing cases, to clarify the statement?


Yes, and I plan on doing some research and like I said earlier, compiling a little summary of Virginia state law on self-defense. There is another issue, known as "imperfect self-defense," which is where you are the initial agressor - you started the fight. The general rule is that if you were the initial aggressor and picked the fight, and then end up killing the other guy, you can't claim you acted in self-defense. But if you start the fight, and then realize the other guy is nuts and is trying to kill you, if you fully withdraw and make it known to the other guy that you don't want to continue fighting - i.e., you "disengage", and he keeps coming anyway, you might be able to claim self-defense, even though it's "imperfect" self-defense. This is, as I understand it, the difference between "excusable" and "justifiable" homicide in self-defense. You might not be "justified," but you might be "excused." That's a tough one, though, and there are lots of Virginia Court of Appeals cases in which a thug who killed a guy in a bar fight or in a jail fight that he was acting in self-defense, but the court basically says, "no way, you were involved in initiating the fight - unless you can show you fully disengaged and no longer were an aggressor, you can't claim you killed him in self-defense."

As far as your question - "may an uninvited person be assumed to be there to cause serious harm to the occupant, such that the occupant may defend against such threat?" I would say no. The trial court will base the determination of whether your actions were justified upon all the FACTS of the specific case. There's no way the courts would recognize a general legal assumption that just because someone is in your house uninvited, that means you reasonably faced a threat of imminent serious physical injury or death and thus were justified in using deadly force against the person.

For example, some 17 year-old kid kicks in your basement window and crawls in, hoping to find either some cash lying around, or some electronics he can pawn, or maybe some booze. You hear the noise and come down to the basement with your shotgun in hand. The kid sees you and falls to his knees crying "oh god oh god oh god! Please don't kill me! Please don't kill me! I'm sorry!! Please don't kill me!!" Just because he's in your house uninvited in no way would justify you shooting him.

Even under the draft Castle Doctrine legislation that has been introduced into the VA General Assembly for several years in a row but never passed, merely being "uninvited" or even having unlawfully or forcefully entered your house is not sufficient justification, on its own, for you to shoot the intruder.

Another example. You find a guy in your kitchen at 2:00 in the morning. His eyes get all big and he turns around and starts running towards the back door. You shoot him in the back, you're going to the big house.

Even under the Castle Doctrine legislation, there has to be a reasonable threat of imminent serious physical injury or death. A court is not going to presume that someone automatically presents that kind of threat to you simply because he was present in your house uninvited or even just because he forcefully entered against your will. You need facts showing that he presented the type of threat that justified the level of force you used to repel him.

Being that this is Virginia, though, and not, say, New Jersey (thankfully, for so many reasons), you will have a much better chance of not being prosecuted for having shot an intruder within your house, though, than if you shot him in your front yard or out on the street.

But the court will consider all of the particular facts of the case and will not make any "assumption" as to what the person's intentions were. The court will look at whatever facts might provide evidence as to the person's intentions and what kind of threat he posed.

See, I'm lawyer - apparently, I am unable to just write a short reply...
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Wed, 07 Sep 2011 17:52:34

P.S. - you also can't use deadly force to protect your PROPERTY. E.g., if you look out your window and see someone stealing you car, you CAN use force to prevent him from taking it - such as fighting the guy, etc. But you can't shoot him. Remember the mantra: I faced a threat of imminent serious physical injury or death. If all the guy is doing is trying to take your car, there is no such threat.

Now, you run out there and say, "HEY! Get the hell away from my car!" and he starts the car and aims it right at you while flooring the gas - go ahead and shoot. Because now he's trying to maim or kill you by hitting you or running you over, and you now are justified in using deadly force in self-defense.

But you might have to clean all his blood and brains off your upholstery, and who wants to deal with that? :whistle:
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby tursiops » Wed, 07 Sep 2011 19:33:34

TenchCoxe wrote:First, with regard to "brandishing": the Virginia Code ยง 18.2-282 expressly states that it is illegal "for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured."

My emphasis in red. Does this mean if you pull a gun on someone in your own house that it cannot be called brandishing?


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby AllenRenner » Wed, 07 Sep 2011 19:55:21

Knowledge is King. After reading this thread, I feel much more knowledgable and even the King of my "Castle".

Thanks for all the information!


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Wed, 07 Sep 2011 20:04:46

tursiops wrote:Does this mean if you pull a gun on someone in your own house that it cannot be called brandishing?


Let's parse the statutory language - we can break it down like this:

it is illegal for any person to (1) point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another OR (2) hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured.

Gotta read this carefully.

The first thing it says is that it's illegal to "point, hold or brandish" a firearm, BB gun, or any object that someone might reasonably think is a gun, in a way that reasonably induces fear in another person's mind. The statute doesn't define "brandish," but the word generally means to display a gun towards another person in a threatening manner.

So if you have a gun-shaped potato and hold it in your hand as if it's a gun to threaten or intimidate someone, or just in a way that reasonably makes someone scared ("reasonably induce fear in the mind of another") - no matter where it happens, and no matter whether you're pointing it them - you're in violation of this statute - unless of course you're acting in legitimate self-defense.

The second thing it says is that it's illegal to "hold" a firearm or BB gun "in a public place" in way that makes someone think they'll be shot or injured. Different thing. First, it applies only to firearms or air or gas-operated weapons - and does not include things that are "similar in appearance" to a gun. Second, rather than "point, hold or brandish," it applies if you just "hold" the gun. And third, it's not just if you "reasonably induce fear in the mind of another" - it has to reasonably induce the fear "of being shot or injured." The idea being if you sit in a park and point a rifle at someone and they reasonably think you're going to shoot them, you've committed the crime. But yes, it does appear, based on the plain wording of the statute (which always is the first thing a court will consider), that the second part of the statute applies only "in a public place." Seems to me this basically is meant to be a "sniper"-type statute. But if you're goofing around in your house with a family member and playfully point a BB gun at him, evidently, you're not in violation of this statute. But take that BB gun outside and point it at someone, then you are.

But if you're simply carrying a gun (i.e., "holding" it), but not in a manner that induces any fear in anyone's mind, you're not violating this statute.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby clayinva » Wed, 07 Sep 2011 22:00:00

[quote="TenchCoxe"]
As stated above, the general rule is that if you REASONABLY feel you face an immediate threat of imminent serious physical injury or death, then you are entitled to the use of force to defend yourself, up to and including the use of lethal force. The belief that you face the type of threat justifying the use of force is what must be "reasonable." I.e., your subjective belief that the little old 92-pound lady with the flowered hat waving her umbrella at you was about to kill you likely is not "reasonable" and even if you say you really thought she was about to kill you likely would not justify your use of force against her.


Thanks for the clarification. I am not an attorney or expert in any way, but have read up on this to a degree, and it appears the "reasonable-ness" of your need for self defense is what dictates the legality. i.e., somebody breaks in and is advancing on you or your family - you are probably justified. Somebody breaks in, steals your TV, and is on their way out, and you shoot them in the back = you are in a world of trouble. And I think there is somewhat more leeway inside your home than on the street; on the street, I think it has to be a clear and present danger to justify deadly force.

I believe the VCDL will again try to get a Castle Doctrine on the books, as they do every legislative session I think, but no reason to believe it will get very far. Until it does, this case law is what we are stuck with. Better that, however, than a 'duty to retreat'.


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby jdonovan » Thu, 08 Sep 2011 05:26:32

clayinva wrote: on the street, I think it has to be a clear and present danger to justify deadly force


I was always told the good guidelines are the threat must be one of significant harm to you or those in your care an the threat needs to be:
Real
Immediate
Capable of being carried out


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Thu, 08 Sep 2011 08:28:00

clayinva wrote:it appears the "reasonable-ness" of your need for self defense is what dictates the legality. i.e., somebody breaks in and is advancing on you or your family - you are probably justified. Somebody breaks in, steals your TV, and is on their way out, and you shoot them in the back = you are in a world of trouble.


Yup. You got it.

clayinva wrote:And I think there is somewhat more leeway inside your home than on the street; on the street, I think it has to be a clear and present danger to justify deadly force.


I think that, as a very general statement, that's reasonably accurate.

clayinva wrote:I believe the VCDL will again try to get a Castle Doctrine on the books, as they do every legislative session I think, but no reason to believe it will get very far. Until it does, this case law is what we are stuck with. Better that, however, than a 'duty to retreat'.


Yup again. I agree. I would say, though, that I don't view the current case law as bad, really. Virginia is pretty darn good on self-defense - no duty to retreat (unless you started the fight) and as you've indicated, if it's in your own home, and the facts are that the guy forcibly entered and is presenting a threat to you or your family, you're pretty much going to be justified. But yeah, a codified Castle Doctrine, with no duty to retreat and immunity from civil suit would be nice.

Of course, the Brady Bunchy will continue shriek and scream about how it allows "paranoid gun owners" to "shoot first and ask questions later," if they merely "feel threatened." With of course is blatantly false.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Thu, 08 Sep 2011 08:33:47

jdonovan wrote:
clayinva wrote: on the street, I think it has to be a clear and present danger to justify deadly force


I was always told the good guidelines are the threat must be one of significant harm to you or those in your care an the threat needs to be:
Real
Immediate
Capable of being carried out


Yeah, those look like pretty good guidelines.

There must be a threat of "imminent" serious physical injury or death. The threat must be actual (real), not merely subjectively perceived, and "imminent" - not some guy 50 yards away saying, "If you come over here, I'm going to kill you." That is a *potential* threat, but is not imminent. It is easily avoided by simply not going over there.

Same guy is running directly towards you waving a machete over his head screaming "DIE! DIE! DIE!" - you might have a different argument. ;-)

I started doing a little research last night and gathering cases. Sheesh! There are a LOT of cases. I gathered a bunch of cases about what kind of knife is prohibited from concealed carry. Then there are cases about what does "concealed" mean. Then there are the self-defense cases... interesting stuff, though. I can see a treatise in the works...
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby albertshank » Sat, 10 Sep 2011 07:34:50

Good Morning Ladies and Gentlemen!

The responses on this issue are excellent! I had hoped we might get a very active thread going on the matter of "castle" and "stand" issues because it is for these concerns that we arm ourselves. Right?

Generally, your responses point out the situation as it now stands here in the Commonwealth. I am very impressed with your thoughts and analyses of this issue. Many of you are absolutely correct in your observations and it's very obvious you have thought about the consequences of having to use your weapons in a self-defense or defense of loved ones situation. In this respect, I discern that most of you seem "comfortable" with case law precedents enabling you to form an adequate legal defense for lawfully using your weapons to protect yourselves and/or loved ones. For some others, I detect a "between the lines" concern over the possible outcomes if you use your weapons to rightfully defend self or loved ones.

An analogy was made in the case of being attacked by an unarmed but overwhelmingly large "Palooka" who is intent on "kicking your ass". Fists and feet can be and often are lethal weapons. There is no doubt in my mind that I would produce my weapon in self-defense in this situation. There can be no doubt that I could righteously "fear for my life" in being beaten to death by this assailant. Other "fearful" situations come to mind as well. The fear of death from physical asssault is what I would consider an adequate reason to produce my weapon.

The real issues that concern me are how I would be treated by the authorities in case of lawful self-defense. At a mininum, I would likely be arrested, cuffed, shot-up and jailed, at least until the issue could be sorted out. Chances are also very good I could be published in the media, be subject to public humiliation, scorn and ridicule and prejudice until the matter was adjudicated. Additionally, because of the nature of the occurence, it's probably likely that I would be denied bond and remain in custody. If I was employed, chances are good that I may loose my job. My family would also suffer scorn and ridicule on my behalf. My good family name would be forever besmirched. And, sadly, the same would NOT happen to the perp and/or his family. The truth is, the liberal, biased media would probably make me look like a cold-blooded killer while public sympathy would accrue to the family of the perp in unbounded quantity.

Ladies and gentlemen, it is for these reasons, among others, that I feel we need a solid, well-written, strong "castle" and "stand" law here in Virginia. When it comes to equity, fairness and justice in the matter of self-defense or defense of loved ones, there can be NO equivocation. Oftentimes, "precedents" are just a reflection on the fashion and attitudes of the times. I am not willing to risk it. Are you?

Respectfully,

Albert


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Mon, 12 Sep 2011 18:45:30

I hear what you're saying (or should I say "I read what you're writing...").

I'm not sure, however, based on the wording of Castle Doctrine and "stand your ground" legislation that I've seen, that such legislation would really alter the result in the scenario you posited above.

Even under "Castle Doctrine" and "stand your ground" laws, the FACTUAL question would still remain as to whether you were justified under the particular circumstances in using deadly force. Yes, you would have a codified legal standard against which your actions would be judged. But the question would remain of whether your actions under the circumstances qualified for the protections offered by the statute.

For example, the most recent version of the legislation to be introduced (and, of course, failed) in the Virginia General Assembly reads:

Any person who lawfully occupies a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when the other person has unlawfully entered the dwelling, having committed an overt act toward the occupant or another person in the dwelling, and the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury.


Note in particular: not only does it require the person to have committed "an overt act" towards you or someone else, "the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury."

There's that same old requirement to have a "reasonable belief" that you or someone else was in "imminent danger" of bodily injury.

Now, granted, it does say simply "bodily injury", not "serious physical injury or death." The question though, when the facts of your particular case would be under consideration by a court, would be whether the degree of "bodily injury" you "reasonably believed" you faced justified the force that you used.

If the guy was threatening to stomp your pinky toe and you shot him in the face with a Desert Eagle, you might have a problem, even with the Castle Doctrine statute in place.

I agree that Castle Doctrine legislation would be preferable to not having it - mostly because of the protection it offers from civil suit (in a paragraph I did not quote above), but (1) what we have now really is not as terrible as some seem to think - the case precedent has been there for generations and the Supreme Court of Virginia and all the lower courts are not going to simply overturn all that well-established precedent as to the law of self-defense in Virginia; and (2) even if/when we finally do get Castle Doctrine passed, it still does not constitute a free pass to shoot someone just because they've forced their way into your house and are being belligerent - despite what the pantywaist anti-gun groups would have everyone believe about such legislation, it's not a "shoot first, ask questions later/shoot if you "feel threatened" law.

In any event, yes, this is a good discussion to have. It's very good to give these matters serious thought from time to time.


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby mamabearCali » Mon, 12 Sep 2011 19:29:14

TenchCoxe wrote: it still does not constitute a free pass to shoot someone just because they've forced their way into your house and are being belligerent - despite what the pantywaist anti-gun groups would have everyone believe about such legislation, it's not a "shoot first, ask questions later/shoot if you "feel threatened" law.


If someone forces their way into my house, and does not leave as I tell them that I have called the police and I am armed and they are being belligerent (with no extenuating circumstances--such as they are obviously drunk and simply lost, or being senile and lost), if they take one more step towards my kids or I am not going to wait for them to get very close before I stop them.

As a side note.
We had a very strange situation at our house about 6 months ago where someone drunk tried to come in but as soon as he heard the bells--I have different bells on all the doors to know whether or not a little one is attempting to escape :hysterical: -- he ran off. But it made me have to think very carefully about what was a serious threat to my family and how I would handle a drunk person bashing their way into my house. If he is simply drunk, disoriented, is banging around downstairs, and is not violent you don't have much of a threat, call the cops and wait at the top of the stairs on watch. If I can get him to leave by shouting "Get the $%^ out and that the police have been called all the better for my family. However a person who bashes their way into my house, and then comes up the stairs to my family's sleeping quarters is up to no good and must be stopped before he reaches the top of the stairs.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby Kreutz » Mon, 12 Sep 2011 19:48:35

mamabearCali wrote:We had a very strange situation at our house about 6 months ago where someone drunk tried to come in but as soon as he heard the bells--I have different bells on all the doors to know whether or not a little one is attempting to escape :hysterical: -- he ran off.


We have those too, for the same reason (our 4 year old likes to sneak out and throw pebbles into the fish pond). Do yours have the alarm mode in addition to the chime? That alarm is LOUD enough to wake the dead. We arm 'em to alarm every night before bed. It covers all our doors nicely.


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby mamabearCali » Mon, 12 Sep 2011 19:51:11

I have the red neck version of it. Different sized wind chimes on the handle of each door. They are not irritating, but they certainly make enough noise to know that someone is at the door. My DH would not allow something abrasive to ears, but no matter where I am in the house I can hear the chimes and I know precisely which door someone is trying to get in or out of.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby Yarddawg » Mon, 12 Sep 2011 20:42:14

Simply place a knife/big stick/etc. in the corpses hand. As the saying goes, "Dead men tell no tales"! :whistle:
Engage your brain!


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby mamabearCali » Mon, 12 Sep 2011 20:46:07

Aside from moral implications, and potential legal implications. :whistle: I am a terrible liar....really bad at it so I don't think I could pull that one off.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby Kreutz » Tue, 13 Sep 2011 07:59:52

mamabearCali wrote:I have the red neck version of it. Different sized wind chimes on the handle of each door. They are not irritating, but they certainly make enough noise to know that someone is at the door. My DH would not allow something abrasive to ears, but no matter where I am in the house I can hear the chimes and I know precisely which door someone is trying to get in or out of.


Ah, in the Army I would put a glass beer bottle on the inside of my door knob at night before going to sleep in case someone broke in. Crime is huge on Army bases.

The things I'm talking about are made by GE and go for like $13.00 a piece on Amazon.


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby Kreutz » Tue, 13 Sep 2011 08:01:34

Yarddawg wrote:Simply place a knife/big stick/etc. in the corpses hand. As the saying goes, "Dead men tell no tales"! :whistle:



I would hope anyone thinking of doing this wouldn't place one of their kitchen knives in the corpses hand if the dude was ventilated near the front door and the kitchens on the opposite side of the house....


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can't sell another kidney (never said I was gonna sell mine)

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