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

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

Postby spadesofcolumbia » Tue, 13 Sep 2011 20:36:50

Like the Captain said "If someone trys to kill you, you try and kill them right back."


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

Postby TenchCoxe » Tue, 13 Sep 2011 21:04:51

Stop him - you try and stop him. Never say you were trying to kill him. You were trying to stop him. If your intent was to kill, there is an argument that you had the state of mind necessary for murder. Instead, you were simply trying to stop him - stop the threat he presented to you.

Unfortunately, your effort of stopping the threat ended up resulting in his death. But him dying was a side effect - a result - of your effort to stop the threat - it was not necessarily what it was you were trying to do. You were just trying to stop him.

Too bad it took so many well-placed bullets to stop him. :whistle:
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby spadesofcolumbia » Tue, 13 Sep 2011 21:51:47

i was actually just quoting another person...but yes, you make a very valid point...good lawyer talk


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

Postby wally626 » Tue, 13 Sep 2011 21:59:48

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.


Besides the sniper type events the public brandishing is also aimed at people acting stupidly with a gun. If you have a drunk waving a gun about, he may not be threatening anyone directly but I would certainly be afraid of being shot. The other distinction may be if you are not in public you can openly carry a weapon in a confrontation say with an intruder, but not point it at them, unless it involves self defense. IANAL so this might be totally wrong.


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

Postby spadesofcolumbia » Wed, 14 Sep 2011 14:45:43

its illegal to be drinking and branishing a gun anyways


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

Postby bryanrheem » Wed, 14 Sep 2011 17:26:26

Really good informative thread!


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

Postby jmicheals1984 » Wed, 21 Sep 2011 00:39:26

I moved here on the 9th and started my job almost a week ago. I am just getting back on the internet so look at forums and what not. The question I have now is what if I am open carrying in the parking lot of my apartment complex, what are my duties then? I come from a state where some Cops would cite you for "brandishing" if you were simply lawfully open carrying. The way the Cops in MI explain it is if someone calls the cops and complains you are considered brandishing and can be cited, fined and even jailed for that and your firearm will be confiscated.


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

Postby jdonovan » Wed, 21 Sep 2011 06:04:50

jmicheals1984 wrote: The question I have now is what if I am open carrying in the parking lot of my apartment complex, what are my duties then?


Same as anywhere else in public that you are allowed to carry. There is nothing special about your parking lot.

jmicheals1984 wrote: I come from a state where some Cops would cite you for "brandishing" if you were simply lawfully open carrying. The way the Cops in MI explain it is if someone calls the cops and complains you are considered brandishing and can be cited, fined and even jailed for that and your firearm will be confiscated.


Good thing you don't live there any more then.


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

Postby ProShooter » Wed, 21 Sep 2011 06:27:49

spadesofcolumbia wrote:its illegal to be drinking and branishing a gun anyways


cite??

Hint - you won't find one. Brandishing is a crime unto itself. It does not additionally require that someone is drinking.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby fireman836 » Wed, 21 Sep 2011 07:41:40

jmicheals1984 wrote:I moved here on the 9th and started my job almost a week ago. I am just getting back on the internet so look at forums and what not. The question I have now is what if I am open carrying in the parking lot of my apartment complex, what are my duties then? I come from a state where some Cops would cite you for "brandishing" if you were simply lawfully open carrying. The way the Cops in MI explain it is if someone calls the cops and complains you are considered brandishing and can be cited, fined and even jailed for that and your firearm will be confiscated.


In the case of Skidmark See: http://forum.opencarry.org/forums/showt ... ost1610508 in reference to brandishing;
Judge Zepkin stated his analysis in terms of the traditional two-element test that the Supreme Court has created: first that one has to have actually caused another person some basis for feeling that his life was in danger, and second that the defendant committed some specific act or behavior using a firearm that resulted in the perception of danger. In this case, the judge accepted the Commonwealth's evidence that the complainant felt alarmed, but found that there was no evidence to support the conclusion that Skidmark actually did anything involving a firearm to create that alarm.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby tursiops » Wed, 21 Sep 2011 07:43:26

bryanrheem wrote:Really good informative thread!

Well, there is some good information and some crap information. The trick is to tell which is which. :confused:


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

Postby TenchCoxe » Wed, 21 Sep 2011 08:07:57

jmicheals1984 wrote:I come from a state where some Cops would cite you for "brandishing" if you were simply lawfully open carrying. The way the Cops in MI explain it is if someone calls the cops and complains you are considered brandishing and can be cited, fined and even jailed for that and your firearm will be confiscated.



Keep it in the holster and you're not brandishing. Period. Virginia law requires you to be "holding" or "pointing" the gun in a way that instills fear in another person. Simply walking around with a gun properly carried in a holster is not brandishing.

I agree that it's a good thing you moved away from a state that would take the idiotic position that simply standing around with a gun in a holster could possibly constitute "brandishing" because some pantywaist got his or her knickers in a twist over seeing a - GASP - GUN!!!

BTW, I would be willing to bet those cops who "explained" it as you describe simply were wrong. Wouldn't be the first time the cops don't know the law they're supposed to be enforcing.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby ProShooter » Wed, 21 Sep 2011 08:17:38

TenchCoxe wrote:
jmicheals1984 wrote:I come from a state where some Cops would cite you for "brandishing" if you were simply lawfully open carrying. The way the Cops in MI explain it is if someone calls the cops and complains you are considered brandishing and can be cited, fined and even jailed for that and your firearm will be confiscated.



Keep it in the holster and you're not brandishing. Period. Virginia law requires you to be "holding" or "pointing" the gun in a way that instills fear in another person.


Well, not entirely true. You can brandish a gun without holding it or pointing it.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Wed, 21 Sep 2011 08:29:38

ProShooter wrote:Well, not entirely true. You can brandish a gun without holding it or pointing it.


I would be curious as to a specific example.

Here is what the Virginia state law has to say about it:

ยง 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.

A. It shall be unlawful 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.


The crime of brandishing requires some overt act of displaying the weapon in a menacing manner - if it's in a holster on your hip and you're just walking around like a normal person, I can't see how that ever could be "brandishing."

I suppose if you yell at someone and say, "Hey! See this?" and point to the gun hanging on your belt, and yell, "I'm gonna shoot you with this!" while sticking your hip out to make sure they can really see it, you *might* be able to make an argument that is brandishing, but it seems like a stretch to me. The statute makes it unlawful to "point, hold or brandish". Which seems a bit circular, since it never defines "brandish." However, the rule in Virginia courts is to use the commonly-understood, dictionary definition of words not specifically defined by statute. My American Heritage dictionary defines "brandish" as "to wave or flourish a weapon menacingly" or "to display ostentatiously". "Flourish" is defined as "to wield or exhibit dramatically."

In any event, the original question was whether walking around in a parking lot open carrying would get you a brandishing charge in Virginia. I submit the answer is no. If a cop does misapply the law, you should be able to get the case thrown out, as long as you weren't doing something overt that reasonably induced fear in another person. Simply goning about your business with a gun in a holster on your hip is not brandishing.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby ProShooter » Wed, 21 Sep 2011 08:40:22

TenchCoxe wrote:
ProShooter wrote:Well, not entirely true. You can brandish a gun without holding it or pointing it.


I would be curious as to a specific example.

The crime of brandishing requires some overt act of displaying the weapon in a menacing manner


Correct, but that is not what you wrote initially. You said "Keep it in the holster and you're not brandishing. Period. Virginia law requires you to be "holding" or "pointing" the gun in a way that instills fear in another person."

If I walk up to you and say "Give me your wallet", and I do this...
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then I have brandished the firearm without pointing it or holding it. Its the display of the gun with the intent to cause someone fear of being shot.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Wed, 21 Sep 2011 09:03:18

OK, yeah, good clarification - but as I indicated above, my answer was in the context of the original question about walking through the parking lot of his apartment with a gun openly carried. It was in that context that I said, "keep it in your holster and you're not brandishing, period." Which is true, under those circumstance. I presumed he wasn't going around making threatening gestured with it.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby ProShooter » Wed, 21 Sep 2011 09:19:37

TenchCoxe wrote:OK, yeah, good clarification - but as I indicated above, my answer was in the context of the original question about walking through the parking lot of his apartment with a gun openly carried. It was in that context that I said, "keep it in your holster and you're not brandishing, period." Which is true, under those circumstance. I presumed he wasn't going around making threatening gestured with it.


and I would agree that the OP should be fine just with the gun in the holster. I just wanted to add on to your statement so as to avoid any confusion. Sometimes people dont read all the posts to follow the progression of the thread.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Wed, 21 Sep 2011 11:48:34

ProShooter wrote:and I would agree that the OP should be fine just with the gun in the holster. I just wanted to add on to your statement so as to avoid any confusion. Sometimes people dont read all the posts to follow the progression of the thread.



Agreed. Good stuff all around.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby albertshank » Thu, 22 Sep 2011 06:43:52

Good Morning Fellow Virginians and Gun Owners!

Someone within this thread said that some of the "information" is "good" and some is "crap". Agreed, however, the problem we all have with this issue appears to regard how solid the ground we stand on is if we are forced to use our weapons in defense of self or others.

Not trying to be a "rabble rouser" here, but my concrete feeling is that if we have a clear, concise and well-written "castle" and "stand" law here in the Commonwealth, we stand on much firmer ground regarding the issue of self-defense and defense of loved ones. As I have previously stated, I am not comfortable with "precedents" in case law. While I do not disrespect the judicial system, I also do not really trust the probable outcomes if I am forced to defend myself or loved ones against threat of grievous injury or death. My life, and how I choose to live it, is not a crapshoot. And, although I love guns, my real purpose in having them is to defend against the predations and potential violence that could befall me if I am invaded or physically attacked, or if a criminal tries to harm my family or friends. And, just to make it perfectly clear, I would never use my weapons to protect my property alone, even though perhaps if a criminal has enough balls to steal my car, or break into my home to steal my TV, he may have enough bravado to kill me if I get in the way.
Under the duress of the moment, it's hard to read minds. And actions always speak louder.

As for taking an "ass kicking", as some have pointed out, allow me to affirm once again that I would protect myself against an unprovoked attack by anyone. Whatever it takes, I would not be willing to gamble on perhaps being blinded, crippled, beaten senseless, mentally damaged, or in any other way grievously injured by anyone. This is why I carry. And, it is also why we need a solid "stand" and "castle" law here in Virginia. And, truthfully, this is why we own guns. Guns are not mantlepieces or Christmas tree ornaments. They are weapons and are made to kill.

Truthfullly, I don't know why we can't come forward with the necessary legislation to protect ourselves, our families, our fortunes and our lifestyles. If we are invaded or attacked, the criminal doesn't think of the law; he disregards the law completely. And, yet, we can be hurt grievously by the law if we act to protect ourselves!! Too risky for me. Sorry, but I remain a "hard head" on this issue.

We need an excellent "castle" and "stand" law here in the Commonwealth and we need it NOW!

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

Postby jdonovan » Thu, 22 Sep 2011 07:00:44

albertshank wrote:As I have previously stated, I am not comfortable with "precedents" in case law.


Well then you are completely uncomfortable with the ENTIRE US legal system.

We need an excellent "castle" and "stand" law here in the Commonwealth and we need it NOW!


What we NEED even more is civil immunity when you have lawfully utilized self defense.

I would like to have something to the effect of: If there are no successful charges, and conviction on a criminal complaint, then there is no civil liability.


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